Second Circuit Rejects Labeling Architectural Works as Compilations, Focuses on Originality

Author: Brian R. Westley

The Second Circuit has ruled that architectural works cannot always be neatly categorized as compilations of unoriginal material, casting aside the Eleventh Circuit’s reasoning in a 2008 case.

Zalewski v. Cicero Builder Developer, Inc., decided earlier this month, involved architect James Zalewski, who licensed several designs for colonial homes to two construction companies. Zalewski alleged the companies infringed his copyright in the designs by using them after the licenses expired. Zalewski asserted the companies copied the overall size, shape, and silhouette of his designs as well as the placement of rooms, windows, doors, closets, stairs, and other architectural features.

The construction companies relied on Intervest Construction, Inc. v. Canterbury Estate Homes, Inc. in arguing that Zalewski’s designs did not merit copyright protection. 554 F.3d 914 (11th Cir. 2008). In Intervest, the Eleventh Circuit held that copyrighted works fall into one of three categories: creative (e.g., original works such as a novel); derivative (variations of original works, such as a screenplay based on a novel); or compilation (a work formed by assembling preexisting individual works which may be unoriginal in such a way that the resulting work as a whole constitutes an original work of authorship). Id. at 919, n.3. The Eleventh Circuit determined that architectural works are compilations entitled to only a thin copyright based solely on their “arrangement and coordination” of unoriginal elements.

The Second Circuit criticized the Eleventh Circuit’s reasoning as overly simplistic, explaining that not all architectural works consist solely of unoriginal elements. “Some architectural designs, like that of a single-room log cabin, will consist solely of standard features arranged in standard ways; others, like the Guggenheim, will include standard features, but also present something entirely new. Architecture, in this regard, is like every art form.” 2014 WL 2521388, at *5 (2d Cir. June 5, 2014).

The real issue, the Second Circuit explained, is to determine what elements of an architectural work are original and therefore protectable, versus what elements are standard and thus not protectable.

In this case, the Second Circuit ruled that the construction companies did not infringe Zalewski’s copyrights because they used only the standard, unprotectable elements of his designs. “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.” Id. at *7. The court further explained that consumers expect colonial homes to reflect a certain style, and the use of such elements should not receive copyright protection.


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