Addressing for the first time whether an architectural drawing may receive copyright protection even if it lacks the level of detail required for architectural works under the 1990 Architectural Works Copyright Protection Act (AWCPA), the U.S. Court of Appeals for the Second Circuit held that such architectural drawings may still be protected as “pictorial, graphic, [or] sculptural works” under 17 U.S.C.§ 102(a)(5) of the 1976 Copyright Act. Scholz Desig. v. Sard Custom Homes, Case No.11-3298 (2d Cir., Aug. 15, 2012) (Sack, J.).
In order to qualify for copyright protection under §102(a)(5), a work must be independent and original, possessing “at least some minimal degree of creativity.” Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. (Supr. Ct., 1991). Historically, however, the scope of an architect’s copyright protection was quite limited. For example, architectural structures depicted in the drawings did not receive copyright protection—only the architectural drawings themselves were protected. This changed in 1990 when Congress created an additional form of copyright protection for the architectural structure (“architectural works”) depicted in the drawings, provided that the drawings are sufficiently detailed to allow for construction.
The district court held that an architectural drawing under § 102(a)(5), even as a pictorial work, required a certain level of detail to receive copyright protection. Here, the district court found that the conceptual nature of the architect’s drawings lacked sufficient details and no copyright protection was provided. As a result, the district court dismissed, inter alia, the claims of copyright infringement which stemmed from the defendants’ alleged use of the architectural drawings in various marketing materials. Scholz appealed.
The 2d Circuit reversed, explaining that notwithstanding that the drawings were architectural, nothing more was required for copyright protection as a pictorial work. The court suggested that the district court had confused the requirements for protection under § 102(a)(5) with that under § 102(a)(8).
The 2d Circuit explained that there is a particular level of detail required, even for architectural drawings, under § 102(a)(5). Further, even if an architect’s expression fails to meet the level of detail required under § 102(a)(8) of the AWCPA, that does not preclude or deprive the architect of general copyright protection under § 102(a)(5). Since the copyright owner is not alleging infringement under the AWCPA, but rather, under the pre-existing copyright provisions for pictorial works, all that is required for copyright protection of the drawing is an author’s independent creation, originality and a modicum of creativity.
Practice Note: Although a detailed architectural schematic may result in two separate copyrights—one for the architectural drawings and the other for the architectural works depicted in the drawings—both copyrights must be registered separately. 37 C.F.R. § 202.11(c)(4).