Intellectual Property Corner

A common industry misconception is that a building design must be Frank Lloyd Wright-innovative to be copyrightable. Under the law, the level of detail and creativity required to be worthy of copyright protection is a relatively low bar; the standard benchmark is a mere dash of originality. That said, the sheer copyrightability of a building’s design does not mean every element is protected. In terms of copyright infringement two regularly recurring issues arise: (1) what design mediums and features are protectable and (2) what is the extent of protection in the context of a copyright infringement claim.

What is and isn’t copyrightable?

Technical Drawings and the Design of a Physical Building Are Protected
Architectural and engineering plans and drawings have long been protected under the Copyright Act of 1976 as “technical drawings,” but this protection did not prevent others from replicating a building constructed from copyrighted drawings. More to the point, there was no copyright protection for the physical building, just the structure’s technical drawings. The Architectural Works Copyright Protection Act (“AWCPA”) changed all that. Now “humanly habitable” buildings, as well as the underlying plans and drawings, are protected, creating two separate copyrights in a building’s design: one in the technical drawings and another in the architectural work.

Standard, Functional Design Features and Commonplace Notions of their Arrangement are Unprotected Ideas
The breadth of copyright protection available for any particular design is primarily dictated by how many original, nonfunctional, and purely aesthetic features are expressed. Staple building components, such as windows and doors, and aspects that are required by design are not protected; nor are the generalized notions of where to place these functional elements. Likewise, certain market expectations for homes or commercial buildings and design parameters imposed by client demands, building codes, topography, pre-existing structures, or engineering necessity do not receive copyright protection.

Additionally, features that are hallmarks of a given architectural style are not protected by copyright. For example, the tall columns of neoclassical buildings, the symmetrical front façade and accented doorway of colonial houses, and the steel framework of modern, high-rise office buildings are all recognized as standard design characteristics from which all architects are allowed to draw.

How much protection does a copyright provide?

While a copyright owner need not clear a high bar in order for an architectural work to qualify as original, the level of protection afforded a particular work is determined on a sliding scale as to the variety of ways to express the design. If there’s a wide range of possible choices, then copyright protection is “broad,” and only substantial similarities to the protectable aspects constitute an unlawful appropriation. Conversely, if the means of expression are limited, then copyright protection is “thin,” and a work must be virtually identical to infringe.

The unfortunate truth is that an architectural work’s interwoven mix of aesthetic elements and utilitarian aspects precludes any brightline standard for discerning the scope of copyright protection afforded. As the United States Court of Appeals for the Second Circuit aptly described the dilemma “some architectural designs, like that of a single-room log cabin, will consist solely of standard features arranged in standard ways; others, like the Guggenheim, will include standard features, but also present something entirely new.” Zalewski v. Cicero Builder Development, Inc., 754 F.3d 95, 103-104 (2nd Cir. 2014)