The U.S. Court of Appeals for the Second Circuit, in addressing the extent to which architectural works are protectable copyright material and the proper framework for assessing copyright infringement of a work of architecture, rejected the 11th Circuit’s analysis that categorized architecture as “compiled works” of copyrightable elements, reasoning that architectural works—like all works of art to some extent—are compiled from uncopyrightable elements, and therefore that architectural designs should be treated like any other art form when assessing copyright infringement.  Zalewski v. Cicero Builder Dev., Inc., Case No. 12-34488 (2d Cir., June 5, 2014) (Wesley, J.)

The plaintiff-appellant, James Zalewski, an architect, had licensed his designs for colonial-style houses to some of the defendants.  Zalewski later sued the former licensees and parties involved in the making of the modified designs for copyright infringement, alleging that after the license expired, the former licensees contracted with other entities to make modified versions of his home designs.  There was no dispute that the defendants possessed copies of Zalewski’s designs and that their home designs strongly resembled his.  Nevertheless, the district court granted summary judgment to the defendants, concluding that any copying that occurred was only of unprotectable elements of the design.  Zalewski appealed.

Copyright infringement requires that a work is protected by a valid copyright, the defendant copied the work, and the copying was wrongful.  To determine those protectable elements of an architectural work, the Second Circuit clarified that the usual copyright doctrines of merger, public domain and scenes-a-faire apply in terms of separating protectable expression from elements in the public domain: “[d]esign elements attributable to building codes, topography, structures that already exist on the construction site, or engineering necessity should therefore get no protection.”  The Second Circuit added that design features driven by consumer demand also are not protected by copyright.

In affirming summary judgment of no infringement in favor of the defendants, the Second Circuit found that Zalewski indeed had a valid copyright, but to the extent any copying occurred, it extended only to unprotected elements of his designs.  Thus, the Second Circuit concluded that any copying that occurred was not wrongful and did not rise to copyright infringement.  Rather, the Second Circuit concluded that any similarities to Zalewski’s designs were a function of consumer expectations, colonial-home design and house design generally; in other words, design elements in the public domain and therefore unprotectable by copyright.