It’s not all in the details

Originally posted 2012-08-17 10:14:15. Republished by Blog Post Promoter

How detailed do architectural drawings have to be to qualify for copyright protection?  Not all that detailed, the Second Circuit ruled on August 15th, in the case of Scholz Design, Inc. v. Sard Custom Homes, LLC (Docket No. 11-3298).  This is an opinion destined for law school casebooks, not necessarily because it’s groundbreaking (the court is at pains to insist that it’s not) but because, besides being clear, well-organized and mercifully succinct, it has all kinds of law-school-exam-type fact-pattern fun which the court lucidly separates out and resolves.

The architect, Scholz, had prepared the subject house plans and properly registered them in the Copyright Office back in 1988 and 1989, which predates the Architectural Works Copyright Protection Act (“AWCPA“).  Three years later, Scholz entered into an agreement with Sard Custom Homes (“Sard”) to build houses using Scholz’s plans, for which Scholz would be paid a royalty.  After the agreement terminated, Sard — and this is one from the What Could They Have Been Thinking? Department — “posted copies of Scholz’s copyrighted drawings of the [plans] on two different websites to advertise Sard’s ‘ability’ to build the homes.”  This was in and of itself prohibited by the contract between them.  Once the drawings were on the Internet, of course, Scholz’s ability to be compensated for their use was severely undermined.

The architect, Scholz, sued for copyright infringement and breach of contract in the District of Connecticut.  Defendants moved to dismiss on the grounds that the drawings

could not have been copyrighted as architectural works because, the copyrights having been granted in 1988 and 1989, they predate the AWCPA and that the conceptual nature of these depictions means that they are not protected by Scholz’s copyright because they contain insufficient detail from which a building could be constructed.  The district court agreed . . .  reason[ing]  that “copyright protection extends to the component images of architectural designs to the extent that those images allow a copier to construct the protected design,” and therefore “the copied images do not fulfill the intrinsic function of an architectural plan and thus the act of copying them does not violate any right protected by a copyright for architectural  technical drawings.”

The Circuit reversed, neatly summarizing its holding as follows:

Copyright protection of a pictorial work, whether depicting a house, or a flower, or a donkey, or an abstract design, does not depend on any degree of detail. The rights Scholz claims in this suit derive from the general copyright law and not from the AWCPA, which has no relevance to the suit. . . .

The district court apparently was of the view that, because the drawings were architectural, something more was required for their copyright protection. It is black-letter law, however, that courts accept as protected “any work which by the most generous standard may arguably be said to evince creativity.  Justice Holmes explained more than a century ago that “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves the final judges of the worth of pictorial illustrations.”

At least not in a judicial opinion concerning copyright, that is.  As to the AWCPA claim, the court explained that nothing in that law invalidated copyright obtained prior to its passage.  But that was, to some extent, besides the point anyway, said the panel:

[A]rchitectural works are currently afforded special status under the [AWCPA]. That special status is, however, irrelevant for purposes of this case because Scholz is not alleging infringement under the AWCPA, but under the pre-existing protection of the Copyright Act for pictorial works. The fact that Scholz’s drawings might or might not be protected under the AWCPA, depending on various factors, does not deprive them of the protection they have as pictorial works regardless of those factors. . . .

The AWCPA did not affect the copyright protection that section 102(a)(5) [of the Copyright Act] has long extended to architectural plans, drawings, and blueprints.

The court went on to address cases on which the District Court had relied with respect to the copyright claim, noting that the court below had made the error of accepting the defendants’ argument that the architectural plans were akin to conceptual doodles that were found not to have been infringed by subsequent built works:

The plaintiff here does not allege . . . that some “concept” or “idea” reflected in his sketches was appropriated –- he alleges that the entire sketch was copied. . . . [O]ne may construct a house which is identical to a house depicted in copyrighted architectural plans, but one may not directly copy those plans and then use the infringing copy to construct the house.

And if one does, one has committed a copyright infringement.  (UPDATE:  And, of course, even if one does not copy or use those plans to construct a house identical to a house depicted in copyrighted architectural plans that is now also copyright infringement under the AWCPA.  Hat tip to Dan Ballard for this!).

Oh, and wait — favorite issue, comes up all the time, and for some reason it does seem to confuse certain judges and lawyers, namely:  What about the breach of contract?  The District Court had dismissed that, too.  It shouldn’t have:

The dismissal of the breach of contract claim was error. Scholz alleged that Sard used Scholz’s drawings in unauthorized ways long after their agreements had expired. This breach of contract claim did not depend on Scholz’s possession of a valid copyright. We therefore vacate the district court’s dismissal of the breach of contract claim.

Game, set, match.