You see them everywhere — Internet sites, open houses, Parade of Homes, and builders and designers providing copies of architectural works, floor plans, and depictions of home exteriors (sometimes called elevations) on which they have registered copyrights. Getting a copyright on house plans and elevations is absurdly easy. The only thing required is the creator have done his or her own work, i.e., the work was independently created by that person. There is no requirement there be a nickel's worth of difference between some existing copyrighted plan or elevation and the plan or elevation a builder/designer is telling the Copyright Office is entitled to copyright registration. Creativity generally is not the key to registration; originality is, and the originality in this instance is that the registrant has been the one who created the plan or design. A registrant could have even created an exact duplicate of someone else's work so long as the creation was done independently. That is not to say everything submitted is entitled to copyright protection. Creativity in the design (which is what most non-intellectual property (IP) lawyers think of when you say "originality") may come into play in analyzing whether an infringement has occurred.

The Copyright Office apparently does not research online to determine if the plan or elevation is actually original; it grants the registration based on the registrant's declaration of originality. Now the registrant is armed with a license to go out looking for targets—the targets being anyone who builds a home that looks like the registrant's copyrighted floor plan or elevation. Worse, the targets are not just builders, but may also include homeowners of humble means who have done nothing wrong and cannot afford to engage in IP litigation in federal court. The copyright laws are written to protect legitimate IP concerns, but in this area, some enforcement appears to cross the line into copyright trolling. See Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093, 1097 (7th Cir. 2017).

To establish copyright infringement, the plaintiff must prove (1) it owns a valid copyright on the work allegedly infringed, and (2) the defendant copied original (protected) elements of that work. Id. To register a work for copyright protection, the work must be original. If a work has both original and unoriginal elements in it, only the original portion of the work is entitled to copyright protection. Floor plans and elevations often do not have many unique, protectable features—there are only so many ways to arrange the walls within a box of certain square footage or to design or place the roofline, porch, doors, and windows. Consequently, plaintiffs often assert the overall arrangement of features is what is being infringed. A plaintiff can assert infringement of both specific protected features and of the arrangement of a combination of protected and unprotected features. In analyzing the arrangement, the court is likely to use copyright law governing a compilation and hold that the arrangement is entitled to thin protection and require heightened proof to establish infringement.

To prove the defendant copied the registered work, the plaintiff can show the defendant had access to the registered work and that the defendant's house is substantially similar to the house in the plaintiff's registered floor plans and elevations. Let's put this test in context. A couple wanting to build a home goes to a Parade of Homes and visits eight homes where the builders provide printed materials showing floor plans and home exteriors. The prospective homeowner couple also downloads various floor plans from the Internet. After review, the couple picks a plan close to what they want, marks it up with some changes, and then contacts several builders to describe what they want. They choose the builder who gives them the lowest estimate, and the house is built. A builder/designer who places online its copyrighted floor plans and elevations has a person travel around searching for homes that look like they might infringe the copyrighted floor plans and elevations. The registrant sues the couple and their builder for copyright infringement in federal district court.

Let's assume the plaintiff can show ownership of the registered copyright and the defendants had access to the copyrighted materials. The case shifts to showing substantial similarity. The analysis can be extremely technical and detailed. Often both sides engage experts to present testimony discussing differences and similarities while making side-by-side comparisons of the house plans and elevations. The court will require proof of substantial similarity for protected elements and, depending on the jurisdiction, may require "supersubstantial" similarity in a compilation analysis for claimed infringements of arrangements of common building elements. Some elements may not be deserving of protection because they are too common or because "market demands, building codes, and functional demands dictate design elements," see Home Design Services, Inc. v. Starwood Constr., Inc., 801 F. Supp. 2d 1111, 1119 (D. Colo. 2011), or because of the merger doctrine, see Harvester, Inc. v. Rule Joy Trammell + Rubio, LLC, 716 F. Supp. 2d 428, 436 (E.D. Va. 2010).

Commonality, market demands, functionality, and the merger doctrine will diminish the likelihood of finding substantial similarity. Commonality refers to the ubiquity of the floor plan or exterior or that the floor plan or exterior is in the public domain. Market demands refer to elements like doors, windows, and other common building components. Functionality refers to how some elements must be arranged in certain ways due to their function (e.g., pantry next to kitchen, bathroom next to bedroom) or they are placed to make the space more livable and not for some creative design purpose or due to topography or other engineering necessity. The merger doctrine applies when an idea can be expressed only in a limited number of ways so the idea and the expression of it merge.

In evaluating the similarities between the works, the factfinder also will have to consider whether the similarities can be attributed to the fact that both the registered work and the allegedly infringing work were "heavily influenced by and incorporate hallmark features of" a particular style of architecture. For example, Colonial or Craftsman are popular styles of homes with literally millions of homes built in those styles. See Zalewski v. T.P. Builders, Inc., 875 F. Supp. 2d 135, 153 (N.D.N.Y. 2012), aff'd, 754 F.3d 95, 106–07 (2d Cir. 2014). A registrant cannot claim copyright protection for and assert infringement of elements such as the open floor plan of the Craftsman-style home or the front columns of a Colonial-style home.

Substantial similarity exists where "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Intervest Constr., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914, 920 (11th Cir. 2008). Some courts use a "total concept and overall feel" test. See, e.g., Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2010). Others make distinctions between extrinsic and intrinsic similarity. See, e.g., Universal Furniture Int'l Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 435 (4th Cir. 2010). The extrinsic test requires separating the unprotected elements from the protected and then comparing the protected elements of the copyrighted work to the allegedly infringing work to determine if the two works contain substantially similar ideas that are protected. There may not be many protected elements. The intrinsic test requires showing the works express those ideas in a substantially similar manner (total concept and feel applies here) from the perspective of the intended audience of the work. Ultimately, if used properly, all of these tests should require determining substantial similarity of only the protected elements to the allegedly infringing work.

Often elements in a home are common or otherwise unprotected elements, but the unprotected elements may go a long way toward causing a lay person to see the home as substantially similar to another or that the total concept and feel are alike. Are lay jurors equipped to separate the protected from the unprotected elements? Will they consider functionality, architectural style in the public domain, and other factors? Will they include in their evaluation only a comparison of protected elements when instructed to do so? With regard to protected elements, various reported cases show that both what constitutes unprotected elements and the substantial similarity analysis can be extremely detailed and somewhat technical. See, for example, the detailed analysis done in Logan Developers, Inc. v. Heritage Bldgs., Inc., No. 7:12-CV-323-F, 2014 WL 2547085 (E.D.N.C. June 5, 2014).

Where infringement is proved, the copyright owner plaintiff can choose as damages (1) its actual damages, plus the profits made by the infringer in using the copyrighted work; or (2) statutory damages if the infringed work was registered before the infringement commenced. The court has discretion in determining the amount of statutory damages and can award as little as $200 for an innocent infringement or as much as $150,000 for willful infringement and attorney fees.

A concern is innocent infringers can be held liable and, worse, have to incur the cost of defending a copyright infringement lawsuit in federal court. A couple having a house built can get sued in federal court because they did some research in determining what they wanted to build. Many home exteriors and floor plans are available to review and are nearly identical to one another. A builder/designer that registers and makes available to the public hundreds of its architectural works might have a cause of action against both a guilty builder and a wholly innocent homeowner who looked at one of the registered works and then had someone build something similar even though the homeowner did not copy either the plan or the elevation. For a middle-class homeowner, just the cost of defending a federal copyright lawsuit can be financially devastating.

Due to the adverse financial consequences to an innocent homeowner, a change in the federal copyright statutes to permit a streamlined, expedited judge-only resolution of these types of claims when made against a homeowner (or at least for homeowners with a home valued at middle-class levels) may be a more just way to adjudicate these disputes. That would not solve the entire problem, but it would make it more manageable for innocent homeowners.

Originally published by the American Bar Association for the Commercial Business Litigation Section.