Builder Beware: Copyright Infringement for Architectural Designs

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.