Intellectual property is a right enshrined in our very Constitution, which grants Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”[1] Congress has made use of that power by legislating a wide birth of laws defining what is a copyright, how to get one, and what it protects.[2] Surprising to many lay observers, architectural works are specifically protected copyrights.[3]

In 1990, Congress passed the Architectural Works Copyright Protection Act (AWCPA) to protect “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings,” including “the overall form as well as the arrangement and composition of spaces and elements in the design,” but not including “individual standard features,” such as common windows, doors, and other staple building components. Moreover, architectural copyrights do not protect:

• Standard configurations of spaces, such as a square bathroom or one-room cabin.

• Purely functional features of an architectural work, such as innovations in architectural engineering or construction techniques.

• Interior design, such as the selection and placement of furniture, lighting, paint, or similar items.

Architectural works are fairly considered the least protectable on the list of protected works because copyrights do not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery,” which roughly translates to anything with an intrinsic utilitarian function.[4]

Buildings serve functional purposes often, and while some large buildings such as the Empire State Building or Taipei 101 have distinctive appearances, these are the exception rather than the norm. The types of buildings people interact with most often are residential, and the single-family home market boomed as the Covid-19 pandemic drove people out of cities and into the suburbs.[5] Experts have claimed that “homebuilders would have to build at least 1.5 million new houses a year for the shortage not to get worse, let alone stabilize.”[6] A demand for housebuilding means a demand for architects, and those architects have a vested interest in protecting their work product. Architects sell their designs to clients ranging from small families looking to build their own home, to large-scale developers building entire communities on empty lots. Copyright protection of these architectural works is intended to ensure architects can design and license their works, but what exactly does a copyright protect?

This question has been gaining attention in recent years, not because architects are trying to stave off unlicensed use of their works, but because other copyright holders are looking to stop architects from licensing out their own works.[7] Design Basics is an example of what has become known as a “troll,” an intellectual property holder that attempts to coerce settlements out of others through strategic use of infringement claims.[8] “Like the proverbial troll under the bridge, these firms try to extract rents from market participants who must choose between the cost of settlement and the costs and risks of litigation.”[9] Intellectual property rights, originally intended as a shield against unlawful use of a holder’s creative work, is being used as a weapon against those who are often legally making use of their own creative works. Architects are now asking how much a copyright protects a work not only to guard their own designs, but also to know if the legal right they rely on can be used against them and if so, how to avoid it.

Fortunately (and unfortunately), designs for single-family homes are poorly protected by copyrights. The 7^th Circuit has recently stated “[t]he suburban single-family home design industry… is on such field where copyright protection is thin….”[10] While this may be a relief for architects concerned with trolls like Design Basics taking them to court, it bodes ill for an architect hoping to enforce a copyright and preclude unlawful use. As the scale of precedent tips further and further towards hollowing out architectural copyrights, architects and attorneys in architectural-adjacent fields should be aware of how to get an architectural copyright and what exactly an architectural copyright protects.

Planning around the protection of a copyright before it vests is the proverbial counting of chickens before they hatch. Although copyrights do not need to be federally registered for an author to own their intellectual property, the Copyright Act of 1976 requires federal registration in order to bring an infringement suit.[11] Infringement is the unlawful use of another’s intellectual property and is at the core of a copyright’s power; it allows the holder to prevent another’s use as to protect their exclusive property rights.[12]

The general process of acquiring a copyright is no different than any other copyrightable material; the architectural drawing must be an original work of authorship fixed in any tangible medium of expression.[13] The Copyright Act defines “Architectural Works” as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement

and composition of spaces and elements in the design but does not include individual standard features.”[14]

Architectural plans rarely have an issue with meeting the two elements, rather their weakness comes not from a lack of originality but from an excess of function. Since copyrights do not protect functional works, constructed buildings themselves are not protected, and protection for sketches, designs, and models only extend to non-utilitarian features.[15] The “useful article” definition of § 101 limits the copyright protections of architectural works because buildings are utilitarian by nature, and buildings are often built for their utilitarian purpose. In practice, this means that architectural copyrights are “weak,” or that proving infringement is difficult.

To prove infringement, a copyright holder must prove ownership of a valid copyright, and that the infringer copied constituent elements of the original work.[16] Proving ownership of a valid copyright is as easy as registering a copyright, and a federal registration is prima facie evidence of a copyright.[17] Copyright infringement often turns on the second element, which itself is two distinct questions; whether the defendant actually copied the plaintiff’s protected work, and if the copying went so far as to constitute an improper appropriation.[18] Both elements are difficult to prove with the first element requiring the plaintiff show the defendant “actually copied” the plaintiff’s work.[19] To do this, a plaintiff must prove that the defendant had an opportunity to copy the work (the “access requirement”), and that the two works are substantially similar enough to support a reasonable inference that copying actually occurred.[20]

It is the substantial similarity requirement that renders architectural copyrights so weak. A million monkeys on typewriters may never be able to recreate the works of Shakespeare, but a single monkey with a LEGO set can create a copyrightable architectural model in an afternoon. Trolls such as Design Basics count on this, and the 7^th Circuit has noted this in near every case Design Basics brought before the court that “there are only a limited number of possible floor plans, and by creating more than 2,800 of these plans, Design Basics has attempted to occupy the entire field… [we wonder] if there is any blueprint for a single-family home anywhere in the country that Design Basics could not match to one of its own designs.”[21]

Affordable single-family homes, as noted by the 7^th Circuit, are particularly susceptible to being unprotectable because the general concept is, to an extent, be generic and cater to the tastes and needs of as many clients as possible. Garages are often connected to streets by driveways, kitchens rarely stray from the ground floor, and local infrastructure like water mains, gas lines, and general plumbing layouts restrict what kinds of rooms can be arranged in what fashion. Even where rooms are arranged in a particular fashion or designed to a specific size, utility often drives these choices, and such utilitarian properties are uncopyrightable.

What an architectural copyright actually protects is narrow in scope, and well defined in the 7^th Circuit’s most recent case.[22] Design Basics, LLC v. Kerstiens Homes & Designs, Inc. (Kersiens) is factually similar to many architectural troll cases, and nearly identical to any of the hundreds of cases Design Basics is involved in.[23] Kerstiens Homes & Designs, Inc. is a collection of companies run by the Kerstiens family in Jasper, Indiana, and had a few home design plans on their website.[24] Design Basics is a residential design firm that markets nearly 3,000 design plans across the country, and derives most of its revenue from litigation.[25] Design Basics incentivized its employees to trawl the internet for anything that might resemble a target for an infringement suit, and came across ten Kerstiens designs that Design Basics claimed infringed seven copyrighted plans.[26]

Although this is the most recent case to rule on architectural copyrights in the 7^th Circuit, it is nearly a carbon copy of similar Design Basics cases. [27]

The court found that although Design Basics held a valid copyright, the second element fell far short on both sub-elements.[28] The 7^th Circuit explained and reiterated its prior holding that “only a virtually identical plan infringes the plaintiff’s copyright plan,” and although the court did not describe what “virtually identical” looks like, it described what “virtually identical” wasn’t.[29] The court found that a laundry room connected to the garage, three standard bedrooms on the second floor, and a kitchen on the ground floor were similar but not “virtually identical.”[30] The court also pointed to details such as a desk in the third bedroom, a second closet in the master bedroom, and different room dimensions as being distinct.[31] The court wrapped up its analysis in stating that “only extremely close copying is actionable as unlawful infringement” for architectural copyrights and awarded $518,457.90 in costs and fees to Kerstiens.[32]

Kerstiens did not break any new ground in architectural copyrights, so much as put another brick in an already formidable wall. Single-family homes and other smaller residential buildings that offer little opportunity for creativity, but rather market on utility and affordability leave little room for the sorts of creative works copyright law protects. Actionable infringement on such designs is so rare, many architects forego registration until controversy is foreseen or occurring.[33] While this may be disappointing to architects and firms seeking to protect their designs, they can rest assured knowing trolls have less leverage than they would have one believe.

[1] U.S. Const. art. I, § 8, cl. 8.

[2] 17 U.S.C.S. §101-1511.

[3] 17 U.S.C.S. §102(a)(8).

[4] Lanard Toys, Ltd. V. Dolgencorp LLC, 958 F.3d 1337, 1345 (Fed. Cir. 2020) (citing 17 U.S.C.S. § 102(b)).

[5] Dan Runkevicius, The Covid Housing Boom Will Go On Until This Happens, Forbes (Oct 22, 2020 8:55 AM), https://www.forbes.com/sites/danrunkevicius/2020/10/22/the-covid-housing-boom-will-go-on-until-this-happens/?sh=4e7ae8a655cc

[6] Id.

[7] In Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7th Cir. 2017), a firm holding over 2,400 architectural copyrights (Design Basics) claimed another firm (Lexington Homes) was infringing on four of their designs. The 7^th Circuit, in the course of rejecting this claim, found that Design Basics had been party to over a hundred similar suits in the course of a few years.

[8] Id. at 1096.

[9] Id. at 1097.

[10] Design Basics, LLC v. Kerstiens Homes & Designs, Inc., 2021 U.S. App. LEXIS 17905 (7^th Cir. 2021).

[11] Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 887 (2019)

[12] 17 U.S.C.S. § 106

[13] 17 U.S.C.S. § 102

[14] 17 U.S.C.S. § 101

[15] H. R. Rep. No. 94-1476, 94th Cong., 2d Sess. 55, reprinted in 1976 U.S. Code Cong. & Admin. News 5659, 5668.

[16] Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991).

[17] 17 U.S.C.S. § 410(c).

[18] Design Basics, LLC v. Signature Constr., Inc., 994 F.3d 879, 886 (7^th Cir. 2021).

[19] Id. at 887

[20] Id.

[21] Id. at 890.

[22] Design Basics, LLC v. Kerstiens Homes & Designs, Inc., 2021 U.S. App. LEXIS 17905 (7^th Cir. 2021).

[23] Id. at *3

[24] Id.

[25] Id.

[26] Id. at *4

[27] See Design Basics, LLC v. Signature Constr., Inc., 994 F.3d 879 (7^th Cir. 2021), Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7^th Cir. 2017).

[28] Kerstiens, 2021 U.S. App. LEXIS 17905 at *7.

[29] Id. at *8.

[30] Id. at *9.

[31] Id.

[32] Id. at *11.

[33] 5 Construction Law P 20.03 (2021)