Homebuilder Infringes Copyrights By Posting House Drawings on Its Website
Scholz Design, Inc. obtained copyright registrations for homes it designed in 1988 and 1989. Scholz submitted both technical drawings and front-elevation drawings, i.e., scale drawings of the fronts of the homes, to the Copyright Office. Scholz entered into contracts with Sard Custom Homes, LLC, allowing Sard to construct homes from Scholz’s copyrighted home plans. Sometime after the contracts ended, Sard posted Scholz’s front-elevation drawings on Sard’s website. Scholz sued Sard, alleging copyright infringement, trademark infringement, breach of contract and Digital Millennium Copyright Act (DMCA) violations.
Sard argued that Scholz’s drawings could not receive copyright protection, as they were registered prior to the effective date of the Architectural Works Copyright Protection Act (AWCPA) and they did not contain enough detail to construct a building. The district court agreed with Sard and dismissed the complaint. The Second Circuit reversed, vacated and remanded the district court’s ruling.
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 AWCAP, which has no relevance to the suit.
(Opinion pdf page 8).
Copyright for Pictorial Works. Some minimal degree of creativity is the only requirement for copyrightability of a work. Scholz’s drawings met that requirement.
Copyright Registration. Scholz’s registration certificates indicated that the drawings were “architectural technical drawings.” Sard argued that current copyright regulations under the AWCPA require separate claims for technical drawings and architectural works depicted in drawings, that Scholz did not make separate claims, so that the front-elevation drawings are not entitled to copyright protection. The court ruled that the passage of the AWCPA did not make Scholz’s copyright registrations invalid.
The Architectural Works Copyright Protection Act. 17 U.S.C. §102(a)(5) applies to pictorial works, such as Scholz’s drawings. Architectural plans, blueprints, technical drawings and original, creative sketches have always been protected by the Copyright Act under §102(a)(5).
Section 102(a)(8), which is part of the AWCPA, added protection for “architectural works.” The AWCPA was passed to bring the U.S. into compliance with the Berne Convention, which requires copyright protection for constructed buildings. “Architectural work” is defined under §101:
An “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.
Prior to the AWCPA, the owner of the copyright possessed the exclusive right to copy the plans, but did not possess the exclusive right to construct the home depicted in the plans. It was not copyright infringement for someone to build the home depicted in the copyrighted plans without the copyright owner’s permission, as long as the home builder did not copy the plans. After the passage of the AWCPA, the copyright owner who creates a plan for a home has two copyrights – one in the drawings and one in the architectural work.
The district court focused on the level of detail in Scholz’s drawings in determining that the drawings were not protected by copyright. The district court concluded that “under section 102(a)(5), architectural sketches or drawings are required to include a certain level of detail to receive protection,” specifically, that “architectural drawings were required to contain sufficient detail to allow for construction in order to receive Copyright Act protection.” (Opinion pdf pages 17 and 22). The Second Circuit indicated that “architectural technical drawings might be subject to copyright protection even if they are not sufficiently detailed to allow for construction.” (Opinion pdf pages 23 and 24.) The existence of creativity is more important to the Second Circuit than whether a home can be built from the drawings.
The Second Circuit reversed the district court’s dismissal of Scholz’s copyright claims.
Sard argued fair use. The district court did not address this argument, as it determined that Scholz did not make a valid copyright infringement claim. The Second Circuit ruled that Sard could raise the fair use defense again on remand.
The district court dismissed both Scholz’s breach of contract and DMCA claims, determining that both of those claims were conditioned on a valid copyright claim. The Second Circuit ruled that the breach of contract claim was independent of Scholz’s copyright claim and that it was error to dismiss the breach of contract claim. The Second Circuit vacated the district court’s dismissal of the DMCA claim because it vacated dismissal of the copyright claim. Scholz did not appeal the district court’s dismissal of its trademark law claims.
This case is Scholz Design v. Sard Custom Homes, No. 11-3298, Second Circuit Court of Appeals.