John Chapman Law Articles
Construction Plans and Copyright Protection
A. Copyright Protection of Architectural Works and Plans
Blueprints and architectural works are subject to Federal copyright protection pursuant to the Copyright Act. 17 U.S.C section 101 et seq.; Arthur Rutenberg Corporation v. Dawney, 647 F. Supp. 1214, 1215 (M.D. Fla. 1986)(citing Imperial Homes Corp. v. Lamont, 458 F.2d 895 (5th Cir. 1972). An "architectural work" is defined as "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings." 17 U.S.C. section 101 (2010) The copyrighted work includes the original overall form as well as the overall arrangement and composition of spaces and elements in the design. M. Kramer Mfg. Co. v. Andrews, 783 F.3d 421, 439 (4th Cir. 1986). Copyright protection, however, does not extend to individual standard features.Id. The scope of protection afforded by the Copyright Act is limited to aspects of a design which are original to the author claiming said protection; the design aspects which have been independently created by the author claiming copyright ownership. Id.
B. Valid/Enforceable Copyright Ownership
To qualify for copyright protection, the work: (1) must be copyrightable;(2) original to the author claiming copyright ownership; and (3) must be fixed in a tangible medium of expression. Feist Publications, Inc. v. Rural Tel. Service Co. 499 U.S. 340 (1991). Provided that the certificate of registration is made within five (5) years of first publication of the work, a certificate of registration constitutes prima facie evidence of a valid copyright and of the facts stated in the certificate. 17 U.S.C. section 410(c). Part and parcel of the presumption of validity are the requirements of originality and copyrightability. Once a prima facie claim of copyright ownership is established, the burden of proof shifts to the infringer to disprove the validity and enforceability of the claimed copyright. Donald Frederick Evans & Associates, Inc. v. Continental Homes, Inc., 785 F.2d 897, 903 (11th Cir. 1986).
C. Infringement of Copyrighted Architectural Work
A claim for copyright infringement can be established if, by preponderance of the evidence, a copyright owner can prove (1) ownership of a valid copyright to allegedly infringed work and (2) unauthorized copying of the copyrighted work by the alleged infringer. Arthur Rutenberg Homes, Inc. v. Maloney, 891 F. Supp. 1560, 1566 (M.D. Fla. 1995)(citing Donald Frederick Evans & Associates, Inc. v. Continental Homes, Inc., 785 F.2d 897, 903 (11th Cir. 1986)). Since proof of direct copying does not often exist, a copyright owner may establish proof of indirect copying by establishing (1) access to the alleged infringed plans by the alleged infringer and (2) substantial similarity between the copyrighted plans and the alleged infringer's plans. Maloney at 1566-67; Arthur Rutenberg Homes, Inc. v. Drew Homes, Inc., 829 F. Supp. 1314, 1318 (M.D. Fla. 1993)(citing Original Appalachian Artworks, Inc. v. Toyloft, Inc., 684 F.2d 821, 829 (11th Cir. 1982) and Novelty Textile Mills, Inc. v. Joan Fabrics Corporation, 558 F.2d 1090 (2d Cir. 1977) as establishing premise for two-pronged test for proof of indirect copying). A copyright owner's prima facie case of copyright infringement may be rebutted by the alleged infringer by establishing evidence of independent creation. Maloney at 1567.
The mere opportunity to view the copyrighted work is held to be sufficient to establish access for purposes of proving copyright infringement. Robert R. Jones v. Nino Homes, 858 F.2d 274, 277 (6th Cir. 1988)(holding "an opportunity to view the protected work" sufficient to prove access).
2. Substantial Similarity
Proof of substantial similarity occurs when in comparing the alleged infringing work with the protected work, an average person would recognize the alleged infringing work was copied from the copyrighted work. Original Appalachian Artworks at 829. The sine qua non of this ordinary observer analysis is whether the overall similarities in the plans rather than the minute differences between the plans lead one to conclude copying. Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607 (7th Cir. 1982). In the instant case, the number of similarities between the copyrighted St. Augustine plan and the infringing Martinique plan leave little doubt that the Martinique was copied from the predating St. Augustine plan. It is whether the Martinique retains the "total concept and feel" of the St. Augustine plan is dispositive of the substantial similarity between the infringing Martinique plan and the copyrighted St. Augustine plan. Id. at 614 (citing Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970)).
D. Copyright Ownership of Derivative Works
The author of an original copyrighted work has the exclusive right to produce derivative works based on the original work. 17 U.S.C. section 106(2). The exclusive right to a derivative work is often more valuable than the right to the original work itself. Maloney at 1564 n.3 (citing Atari, Inc. v. North American)(citation omitted).
E. Statute of Limitations for Copyright Infringement Claim
Pursuant to section 507(b) of the Copyright Act, the owner of copyright must bring an infringement action within three years after the infringement claim accrues. 17 U.S.C. section 507(b). For purposes of Copyright Act infringement actions, an infringement claim is said to accrue when the act of infringement occurs and the copyright owner has knowledge of that fact.
Roley v. World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir. 1994)("a cause of action accrues when a plaintiff knows or has reason to know of the injury upon which the claim is premised").
III. Measure of Damages
The proper measure of actual damages for the infringement of the copyright owner's copyrighted architectural work is the lost profits suffered said copyright owner of the home constructed with the allegedly infringing plans. 17 U.S.C. section 504(b); Maloney at 1568; Robert R. Jones, Inc. v. Nino Homes, 858 F.2d 274 (6th Cir. 1988). The copyright owner need only to establish the infringer's gross profits. Dawney at 1215. The burden is on the infringer to prove any deductible costs or expenses. Id.