Last week the Second Circuit reaffirmed the old copyright doctrine that brilliance, originality, and a high level of creativity are not prerequisites for copyrightability, and at the same time it clarified a misinterpretation of the Architectural Works Copyright Protection Act (“AWCPA”). The opinion is Scholz Design, Inc. v. Sard Custom Homes, LLC.
In the 1980s, Scholz Design created blueprint architectural drawings for three homes and, after registering the copyrights in the blueprints, subsequently licensed the drawings to Sard Custom Homes for construction. After the license expired, Sard apparently posted the drawings on the Internet, and in 2010, Scholz sued Sard for copyright infringement. Sard raised two arguments in a motion to dismiss the complaint: first, that the drawings were not copyrightable because they were created before AWCPA was enacted in 1990, and, second, that the drawings were not copyrightable because “they contain insufficient detail from which a building could be constructed.” The district court agreed with Sard’s arguments and said 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 because “the copied images do not fulfill the intrinsic function of an architectural plan … the act of copying them does not violate any right protected by a copyright for architectural technical drawings.” Based on that reasoning, the district court granted Sard’s motion to dismiss.
Scholz Design appealed the ruling, and rightly so, for the Second Circuit rejected the district court’s reasoning and reversed the ruling. “Copyright protection of a pictorial work, whether depicting a house, or a flower, or a donkey, or an abstract design,” said the Court, “does not depend on any degree of detail.” Grounding this statement in law, the Court reaffirmed the 1991 opinion of the U.S. Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co. that “To qualify for copyright protection, a work must be original – that is, it must be independently created by the author and possess at least some minimal degree of creativity.” The Feist opinion further emphasizes that the hurdle of creativity an author must leap is not high: “The requisite level of creativity is extremely low; even a slight amount will suffice.” So much for brilliance: it may help your work win praise with the critics, but it is not a precondition for copyrightability.
The Court went on to emphasize that the fact that the drawings in this case are blueprints has no significance to the outcome: “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 … Scholz is not alleging infringement under the AWCPA, but under the preexisting protection of the Copyright Act for pictorial works.”
Then, even though the case did not involve the AWCPA, the Court provided helpful elucidation of that 1990 Act: “The AWCPA did affect the copyright protection that … has long extended to architectural plans, drawings, and blueprints … the AWCPA extended copyright protection to physical buildings.” This means that “prior to the passage of the AWCPA, courts had held that use of copyrighted architectural plans to construct a building would not constitute infringement, but then as now, copying those plans would.” So, after the passage of the AWCA, which protected buildings as three-dimensional copyrighted works, analogous to the copyright protection granted to sculptures, the owner of blueprints possesses copyright protection for the blueprints as pictorial works and for the building built from the blueprints under the AWCPA.
So the Second Circuit has bestowed happiness in two ways in this opinion: it clarifies some muddled thinking about the applicability of the AWCPA, and it reassures us that (with respect for poets like William Blake and Samuel Taylor Coleridge) we do not need to be visionary and original writers to achieve copyrightability for our writings.