Addressing for issue of similarity of copyrighted architectural plans, the U.S. Court of Appeals for the Eleventh Circuit held that no reasonable observer could find that two plans in dispute were substantially similar. Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., Case No. 07-12596 (11th Cir., Dec. 22, 2008) (Goldberg, J., sitting by designation).
Plaintiff Intervest Construction created a four-bedroom floor plan called “The Westminster” in 1992 as a work-made-for-hire by Intervest. Defendant Canterbury Estate Homes, Inc. created a four-bedroom floor plan called “The Kensington.” Each floor plan included certain elements common to most houses.
The Court stated that pursuant to 17 U.S.C. §101’s definition of “architectural work,” individual standard features which include “common windows, doors, and other staple building components” are not copyrightable. However, the arrangement and composition of spaces and elements in the design demonstrates Congress’ appreciation that creativity in architecture frequently takes the form of a selection, coordination or arrangement of unprotectable elements into an original, protectable whole. Architectural works are only entitled to thin protection when only the arrangement and coordination of unprotectable elements is alleged, as here.
The Court, comparing the architectural work’s unprotectable common features to the protectable arrangement and compilation aspects to a compilation copyright’s idea/expression dichotomy, found that judges are better than juries at determining where to draw the line: “The reason for this is plain¾the ability to separate protectable expression from non-protectable expression is, in reality, a question of law or, at the very least, a mixed question of law and fact.”
Here, the district court carefully compared the protectable aspects of the two floor plans at issue, thus focusing only on the narrow arrangement and coordination of otherwise standard architectural features. When courts have dealt with copyright infringement claims involving creative types of works, “substantial similarity” has been defined as existing “where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” The Court held that there were many dissimilar features to the average lay observer of each party’s four-bedroom plans, including the square footage, garage, bedrooms, closets, bathrooms, nooks and shapes of the rooms. The Court held that these elements were dissimilar in their arrangement and coordination. Thus, the Court concluded that since the copyright was “thin” (because only the arrangement and coordination were protectable), the district court correctly found that there was no substantial similarity and no copyright infringement.
Practice Note: Architectural copyrights are usually construed to bestow only narrow copyright protection. A plaintiff enforcing a copyright architectural must establish that the allegedly infringing work is substantially similar to the plaintiff's work with regard to its protected elements.