The high profile lawsuit in 2004 over the design of the One World Trade Center stands as a reminder that when it comes to architectural copyrights, there is a law, and it is still evolving.
A former architecture student claimed that a high profile architect had infringed on his design. The student had designed a tower for a studio project. The architect, it was alleged, copied the design substantially when designing the trade center project. Both parties vacated their claims, however, and a judge made two rulings that are still influencing architectural copyright law today. One ruling held that even though the towers were not identical in shape, they were still similar enough to “suggest infringement.” And, while the student hadn’t “developed a technical, structural scheme” for his tower, his renderings were protectable under copyright law.
The Evolution Continues
The fact that the law on architectural copyrights is evolving in new ways is shown in another case in Miami where two architectural firms butted heads over a 43-story condo tower. The judge in the case declared that the typical analysis wouldn’t work, so he developed new “guideposts.” These guideposts stretched the boundaries on how to decide whether or not structures are substantially similar. And, since he labeled the guideposts as “non-exhaustive” and “non-exclusive,” he left the door open for further interpretation.
In 2013 the average cost of a lawsuit was $300,000 with just $1 million at risk.
High profile lawsuits of large complex projects aside, there is no shortage of disputes over architectural copyrights in the home building sector, and the potential for lawsuits can come from many directions.
One home designer in Nebraska recently sued four home builders, a contractor, a building supply company, and a competing home plan designer for infringement. The plaintiff held copyrights on 10 home designs that he claimed the other parties had infringed upon. Not only did the plaintiff charge that the plans were duplicated, but also that the parties had created derivatives of them.
A homebuilder in Colorado also sued a couple for infringing on his copyrighted home. The home was a ranch style home with three bedrooms where the master was separated from the other two bedrooms by the dining and living area. Both sides had experts testify on their behalf, however, the homebuilder’s expert did not present specific aspects about the couple’s house that infringed on the copyright. The court rejected the builder’s claim of infringement because the house was not similar under the "abstraction-filtration-comparison" test––a three step process aimed at establishing whether copyright is infringed upon in these types of cases.
In another case in Houston, a national home builder sued a local builder for infringing on architectural copyrights of townhomes. The local builder claimed the national builder was not entitled to copyright protection since the requirements of building in the development, and the market demand, severely limited the ways the homes could be built. The local home builder won in this case.
Architectural copyright lawsuits are not common, but when they occur, they are expensive. The American Intellectual Property Law Association reported that in 2013 the average cost of a lawsuit was $300,000 with just $1 million at risk. Of course the cost goes up with the risk.
These are also the kinds of lawsuits that can sneak up on you. For example, it’s not uncommon for the clients of architects to assume they own the designs because they paid for them. Often, there are many people who work on a design so parceling out who owns the rights to what, gets cloudy. Then too, there are many features used in buildings that are not unique to those buildings. It’s often the case that windows, doors, and other common features must be separated from the structure before starting to compare an original with an alleged copy.
An Ounce of Prevention
So, what exactly do you have to be careful of when it comes to architectural copyrights? According to Philip R. Stein, writing in the National Law Review:
If you construct a building that is structurally similar to another’s, and you don’t have permission, you could violate copyright law.
Architectural copyrights apply not only to the plans, but also drawings and the buildings themselves.
Just making minor changes to plans and designs won’t reduce your liability for a copyright infringement claim.
You can’t rely on a defense of innocent infringement, and there is no requirement for the holder of the copyright to register the work, or to publish notice of copyright.
If you have designs you want to protect, you should register them so you can get the full benefits of the law.
You should request a right to indemnification from any party supplying design plans to you, or to anyone in your firm.
With architectural copyright law evolving, and litigation increasing, it’s more important than ever to know where building plans come from and exactly who claims ownership. Otherwise, you could be in for unpleasant surprises that might not manifest for years.