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Earlier this month, the Second Circuit "tackled the tricky question of how to define originality in architecture," reports Architect Magazine. Though standard copyright theory applies, determining originality in architecture can be difficult for courts.
In finding its own path, the Second Circuit rejected the analysis of the Eleventh Circuit, and decided to go its own way.
Architectural Works Copyright Protection Act of 1990
Though the Copyright Act, codified at 17 U.S.C. §§ 101 et seq., provides copyright protection for a non-exhaustive list of works, it wasn't until 1990 that architecture became explicitly protected. In order to meet the requirements of the Berne Convention, signatory countries had to extend copyright protections to architecture, which resulted in the passage of the Architectural Works Copyright Protection Act of 1990.
James Zalewski is an architect who designed and licensed his copyrighted architectural plans to two building companies. After the licenses expired, the companies customized the plans, without his consent, and continued marketing the designs. Two houses were built using the allegedly infringing designs, resulting in Zalewski suing for copyright infringement.
Second Circuit's Analysis
With not much architectural precedent available to illuminate the case, the Second Circuit looked to a similar case decided in the Eleventh Circuit. There, the court separated copyrighted works into three categories: creative, derivative or compiled, attaching different levels of protection for each category. The Second Circuit rejected this theory, stating "Every kind of word at some level is a compilation, an arrangement of uncopyrightable 'common elements.'"
Instead, the Second Circuit held that it must "determine what in it [the work] originated with the author and what did not." The court explained that elements such as "codes, topography, [and] structures that already existed on site," recognized styles, features used by all architects due to consumer demand, good engineering, and design parameters all do not get copyright protection.
Here, the court noted that Zalewski designed colonial homes, which required adherence to very strict parameters, and that Zalewski could claim no "copyright in those conventions," just as Shakespeare could not claim copyright to iambic pentameter.
Guidance for Architects
Here, the court stated that "as long as [an architect] adhered to a pre-existing style his original contribution was slight -- his copyright very thin." So the lesson for architects is to create something distinctive, which cannot be attributed as an element of style. One need only look at the works of Frank Gehry to see what an original building plan looks like.