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Ingram Yuzek Gainen Carroll & Bertolotti, LLP

If You Build It:
News for Design & Construction Professionals

Second Circuit Deems Architect’s Elevations And Sketches Not “Protectable” Under Copyright Law

Published by ​Robert A. Banner, Esq. on June 18, 2014

Last week, the Second Circuit Court of Appeals, which has jurisdiction over cases in the New York area, handed down a significant case regarding the elements of an architect’s design that are entitled to copyright protection.  In Zalewski v. Cicero Builder Dev. Inc., 12-3448-CV, 2014 WL 2521388 (2d Cir. June 5, 2014) the appellate court affirmed a Northern District Court’s decision granting summary judgment to builders who were alleged to have infringed an architect’s copyright.   The Second Circuit held that although the architect had obtained a valid copyright and although the builder copied the architect’s work, the copying was of “unprotected” elements of the architect’s work.  Therefore, the copying was not wrongful and the builder was entitled to summary judgment against the architect.

In this situation the Architect’s plans, which can be viewed in an exhibit to an affirmation filed in the litigation, consisted of very basic elevations and very basic floor plans for colonial homes.  The Court found that most of the similarities between the architect’s designs and the builders’ copied designs are features of all colonial homes.  The Court reasoned that the architect’s original contribution was very slight and that although the design was copied (but not exactly copied) the builder shared plaintiff’s general style but took nothing from his original expression.  “Plaintiff can get no credit for putting a closet in every bedroom, a fireplace in the middle of an exterior wall and kitchen counters against the kitchen walls.”  “The overall foot print of the house” and the size of the rooms are “design parameters dictated by consumer preferences and the lot the house will occupy, not the architect.”

The Zalewski case is a significant federal court decision interpreting the rights of architects in the New York area.  While the drawings here led the court to reach what is quite possibly the correct result, the language of the Court about what constitutes protectable design could easily be applied in a manner to undercut the level of copyright protection an architect should expect.  The decision does offer some clues as to how an architect should create the requisite level of originality to maximize the chance that what happened to Zalewski does not happen to it.

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