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Copyright Infringement Claims for Alleged Copycat Design & Construction

When we think about copyright infringement, most often we think about someone copying some or all of a book or article. In the construction arena, an ever-evolving and seemingly more disputed copyright issue arises in claims related to the concept and design for buildings, including high-end homes. Recently, a custom home designer/builder (we’ll refer to that as the Plaintiff Designer) sued several defendants, including a husband and wife homeowners (we’ll refer to them as the Homeowners) in federal court in Norfolk for violations of federal copyright law. The Plaintiff Designer also sued the design firm that ultimately designed a Georgian-style house for the Homeowners, and the construction company that built the house.

At the heart of the complaint by the Plaintiff Designer was that the Homeowners had toured a model of a certain style of house that the Plaintiff Designer had copyrighted, and later had another firm design a house substantially similar to the copyrighted one. In an opinion issued in late September, the district court judge granted summary judgment in favor of all of the defendants in a lengthy opinion.

From the court’s opinion, there are several key issues that affect construction copyright issues in Virginia going forward:

  • This can be a complicated area of the law factually. In this case, there were a number of factors that complicated the court’s analysis. One major factor was that the copyrighted house and the one the Homeowners had built were both in the same subdivision, which had strict subdivision design requirements. Further, both the copyrighted house and the one the Homeowners built were Georgian-style, which necessarily meant there were similar features. The court’s analysis had to spend much time reviewing the nature of the Georgian style, and how the subdivision’s policies on exterior improvements factored into the competing designs. In the end, the court recognized that there were many houses within the subdivision that resembled each other to a substantial degree.
  • Getting your work copyrighted early on is a head start, but not the final solution. Having been involved in a few of these cases over the years, it is a huge head start for a design professional to have taken steps through the federal Copyright Office to obtain a Certificate of Copyright. With such a certificate there is a presumption of originality in favor of the holder. But, because the copyright office does not perform an analysis of the originality, the federal court in this case emphasized that the presumption is “fairly easy to rebut.” The court also pointed out that the copyright only protects the “original” aspects of the copyrighted design.
  • Access to the copyrighted materials is a pivotal issue. A major focus of the court’s opinion was whether there was a genuine issue of fact about the defendants having access to the copyrighted materials. It concluded that there was not a genuine issue raised by the Plaintiff Designer in opposition to the position of the subsequent designer and builder that they did not have sufficient “intermediate” access to the copyrighted plans. Once the court concluded that there was no evidence that the Homeowners sent any information about the copyrighted design to them, the court dismissed the case against the subsequent designer and builder.
  • Substantial Similarity is a critical issue. The court’s analysis hinged on the fact that, in a circumstantial evidence-based case, the plaintiff must prove the original and subsequent designs are “substantially similar.” Again, the focus is on the original, protected features of the copyrighted work, and the ultimate design. In doing so, the court did not afford any protection to design elements that are “either indispensable or common to Georgian-style architecture.” As to the areas of the design that might be protected, the court concluded that there were a “few similarities and many differences” between the copyrighted design and the one used by the Homeowners, and issued summary judgment in favor of the Homeowners on that point.

With the amount of discovery that had taken place in this case, the number of pages consumed by the filings and opinion of the court, and the obvious vigor of the parties positions, an appeal by the Plaintiff Designer would appear to be on the horizon. Likewise, this is an issue that is getting attention nationally as to whether the law on these issues should be changed, as discussed in this ABA Intellectual Property article recently.

Additional Resources

These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.
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