An
often overlooked function of the Copyright Act is the protection it provides
for architectural works. Recently, however, the Eastern District of New
York was called upon to decide a copyright infringement claim involving
architectural designs for residential homes. Axelrod & Cerveny v.
T. & S. Builders Inc., 2013 U.S. Dist. LEXIS 63206 (E.D.N.Y. May 2,
2013). In that case, Plaintiffs owned valid copyrights in an
architectural design entitled “Georgetown II,” as well as the derivative work
referred to as “Home Design 2434.” Plaintiffs alleged Defendants
infringed by designing, marketing, constructing and selling four homes which
Defendants referred to as the “Franklin” model.
Defendants
distributed sales brochures which included a copy of the cover of Plaintiffs’
sales brochure, depicting the exterior of the Georgetown II model.
Another of Defendant’s brochures for the Franklin model contained an exact copy
of the floor plan for the Georgetown II. Yet another of Defendants’
brochures contained a copy of the floor plan for the Georgetown II with only
minor variations, such as differing placement of the bathroom on the first
floor and the number of walk in closets on the second floor. In several
instances, Defendant’s brochures did not even bother to remove the “Georgetown II”
designations on its Franklin brochures. Although Plaintiffs had their own
sales brochures for the Georgetown II, these brochures were not
copyrighted.
With
respect to the homes themselves, the contracts for sale for three of the four
homes in question included the two-page floor plan for the Georgetown II,
copied directly from Plaintiffs’ brochure. Defendants claimed that as
constructed, the four homes in question exhibited more than 35 modifications
from the original Georgetown II floor plan as a result of customizations, and
that therefore all of the homes were substantially different from each
other.
In
deciding whether to grant Plaintiffs’ motion for partial summary judgment the
court grappled with two issues: 1) Whether or not Defendants’ copying of
the exterior of the Georgetown II infringed on Plaintiffs’ copyright if there
were substantial modifications to the interior of Defendants’ Franklin model,
and 2) whether the use of the Georgetown II brochure in Defendants’ brochure is
an infringement.
The
court examined the precedent of district court outside the Second Circuit to
determine that infringement can be established based upon copying of the floor
plans, the exterior or both. The Court analyzed the substantial
similarity by evaluating the “total concept and feel” of the works under the
ordinary observer test. The plans or structures do not have to be exact
but merely show that a substantial part was copied. Thus, for an
architectural work it is what’s on the inside or what’s on the
outside that counts; it need not be both for the “total concept and
feel.” The Court granted summary judgment to Plaintiffs for exterior
copying by Defendants.
The
Court also granted summary judgment for Plaintiffs based upon Defendants’
copying of the floor plans from Plaintiffs’ Georgetown II
brochure. While recognizing that there was no copyright
registration for the Plaintiffs’ brochure, the court found that the brochure
did state that the floor plans themselves were copyrighted and cited a list of
cases where the copyright protection in the floor plans extended to
unregistered sales brochures. The Court distinguished between the final
construction and the brochures stating, “…[d]efendants have failed to explain
why purported modifications made to the designs during the homes’ construction
absolve defendants of liability for improperly using plaintiffs’ copyrighted
floor plans in the sales contracts…” and brochures.
