By Blake Farion
On August 15, 2012, the Second Circuit decided Scholz Design v. Sard Custom Homes.1 Scholz Design, Inc. (“Scholz”) appealed from the dismissal of its complaint alleging copyright infringement against Sard Custom Homes, LLC (“Sard”).2 The Second Circuit reversed the ruling, stating that Scholz’s architectural drawings qualified for copyright protection.3
Scholz created three different home plans,4 each consisting of a front elevation drawing5 (the “Drawings”) and a blueprint.6 The home plans were named “Springvalley A,” “Wethersfield B,” and “Breckinridge A.”7 Scholz submitted the home plans to the United States Copyright Office in 1988 and 1989, which granted copyright registration for all three home plans.8
In 1992, Sard signed a three-year contract with Scholz to build homes based on its home plans, including the Drawings.9 The contract included a provision that Sard would not “copy or duplicate any of the [Scholz] materials nor . . . [use them] in any manner to advertise or build a [Scholz Design] or derivative except under the terms and conditions of this agreement.”10 In 1995, the parties renewed the contract for an additional three years.11
After the renewed contract expired, Sard and Prudential Connecticut Realty (“Prudential”) posted images of the Springvalley and Wethersfield Drawings on two different websites.12 Additionally, Sard and Coldwell Banker Residential Real Estate, Inc. (“Coldwell”) used an image of the Breckinridge Drawing on Coldwell’s website.13 All three uses were coupled with statements declaring Sard had built or would build the homes shown in the images.14 After discovering the use of its Drawings, Scholz filed suit in the United States District Court for the District of Connecticut claiming copyright infringement, among other causes of action.15
Sard, Prudential, and Coldwell (collectively, the “Defendants”) moved to dismiss Scholz’s complaint, arguing that the Drawings alone did not qualify for copyright protection as architectural works.16 The District Court agreed. It cited the Architectural Works Copyright Protection Act (“AWCPA”)17 and explained that
[a]n ‘architectural work’ is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.18
To qualify for copyright protection as an architectural work under the AWCPA definition, a drawing must “contain sufficient detail from which a building could be constructed.”19 The Drawings are two-dimensional depictions of the front of the homes. They do not show any other side, internal details, or dimensions detailing the size of the buildings. From this, the District Court concluded that the Drawings “do not convey sufficient information with respect to these designs to allow construction of these homes.”20 As the Drawings did not qualify for protection under the AWCPA, the District Court granted the Defendants’ motion to dismiss.
The Second Circuit explained that under basic copyright principles protection is afforded to pictorial works that possess very little creativity.21 “Copyright protection of a pictorial work, whether depicting a house, or a flower, or a donkey, or an abstract design,” the court emphasized, “does not depend on any degree of detail.”22 As long as a work “possesses at least some minimal degree of creativity” it will be afforded copyright protection.23
The Second Circuit then engaged the AWCPA standard. After reviewing the District Court’s decision, the Second Circuit drew a distinction between copyright protection for pictorial works and protection for architectural works.24 Although protection as an architectural work requires enough detail that a building may be constructed from the design, a pictorial work only requires a small amount of creativity.25 A work, such as the Drawings, does not have to qualify under only one of the categories.26
Prior to the passage of the AWCPA, architectural drawings, plans, and blueprints were protected as pictorial works under Copyright Act section 102(a)(5).27 But this protection was afforded only to the pictorial works themselves.28 A builder could have constructed a building matching the architect’s design and it would not have constituted copyright infringement absent proof of copying.29 If, however, a builder copied architectural plans or directly displayed any architectural drawings, then the builder would have been liable for infringement.30 An architect would thus have an infringement claim if another party copied his architectural plans, but would have no such claim if another party constructed the building depicted in the plans.31 A copyright holder, after all, has “the exclusive right to reproduce the original work” but only patent law can protect the design from an independently created work.32
The Second Circuit concluded that the District Court erred in its application of the AWCPA and Copyright Act.33 The District Court believed that for any work created to be an architectural design to qualify for copyright protection, it needed to have enough detail such that a building could be constructed from it.34 The Second Circuit, however, recognized that the AWCPA merely expanded copyright protection to architectural plan. It did not limit pictorial protection. “[T]he holder of a copyright in an architectural plan,” the court explained, “has two forms of protection, one under the provision for an “architectural work” under 17 U.S.C. §102(a)(8) and another under the provision for a “pictorial, graphical, or sculptural work” under 17 U.S.C. §102(a)(5).”35 Protection as an architectural design, prevents another from copying the building designed in the drawings.36 In addition, the drawings themselves still qualify for protection as pictures independently of the AWCPA.37 As the Drawings qualified for protection as a pictorial work, the Second Circuit reversed the District Court’s dismissal and remanded the case for further proceedings.38
This decision re-established copyright protection for architectural drawings as pictorial works under 17 U.S.C. §102(a)(5).39 If a work fails to qualify as an architectural work under 17 U.S.C. §102(a)(8) it can still be protected as a pictorial work. The decision also established that any work capable of copyright protection may be classified under more than one category.
For architects, this decision affords protection to architectural plans and drawings upon creation. Any plan that is considered an architectural work gains protection for both the drawings and the building itself. Competitors cannot copy the plans or the building, even if the infringing building was constructed without using the original plans and drawings.40 Additionally, architects now know that their initial plans and drawings are protected as pictorial works, allowing them more time to expand on those plans with sufficient details to warrant protection as architectural works. An architect may thus take more time in designing the details of a building without worrying about a competitor making use of his or her drawings. Competitors, however, are still free to construct buildings depicted in non-AWCPA compliant drawings provided that the competitor does so without copying another’s drawings.
12 Id. at 185.
29Courts have frequently held that an architect only has rights in the architectural drawing itself, but not the building depicted in the drawing. See Herman Frankel Organization v. Tegman, 367 F.Supp. 1051, 1053 (E.D. Mich 1973) (“A person cannot, by copyrighting plans, prevent the building of a house similar to that taught by the copyrighted plans.”); Demetriades v. Kaufmann, 680 F.Supp. 658, 665 (S.D.N.Y. 1988) (“[Copyright] protection simply does not extend to the design or the house itself absent a design patent.”); Robert R. Jones Associates, Inc. v. Nino Homes, 858 F.2d 274, 280 (6th Cir. 1988) (“[O]ne may construct a home which is identical to a house depicted in copyrighted architectural plans, but one may not directly copy those plans . . . .”)
39See e.g. Raphael Winick, Copyright Protection for Architecture After the Architectural Works Copyright Act of 1990, 41 DUKE L.J. 1598, 1620-1 (1992); Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218, 1228 (2008).