Contract ConcernsContract ConcernsSummary judgment was granted and affirmed — holding there had been no copyright infringement. The trial judge compared protectable aspects of two floor-plans, focusing only the narrow arrangement and coordination of otherwise standard architectural features. Although there were obvious similarities in the architectural work, the court noted that not all copying constitutes infringement. The court focused on the many dissimilarities or differences in the plans and found the differences to be so significant that no reasonable jury could find the works substantially similar. Architectural work, by definition, includes the overall form, arrangement and composition of spaces and elements in the design but does not include individual standard features such as common windows, doors and other staple building components. This is similar to a definition of "compilation" such that a work formed by the collection and assembling of preexisting materials or data that are selected, coordinated and arranged in a particular way causes the resulting work as a whole to constitute the original work of authorship. Consequently, for purposes of judging whether there is a copyright infringement, the comparison of similarity of the works must focus on the arrangement and coordination of the common elements rather than on similarities of the common elements themselves.
The copyright infringement case of Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (D.C., FL, 2008), involved competitor home-builders and a floor plan for a house depicting four bedrooms and a two car garage. The plaintiff Intervest Construction had a floor plan copyrighted in 1992. Ten years later, a competitor, Canterbury Estate homes created a floor plan with a similar layout that Intervest claimed infringed its copyright. The trial court went through a very thorough and detailed analysis of the floor plans — noting specific similarities and differences throughout the houses.
When viewed through the narrow lens of compilation analysis, the court said that only the original, and thus protected, arrangement and coordination of spaces, elements and other building components should be compared. The court stated that determining the issue of potential copyright infringement in a case such as this one was better addressed through summary judgment than allowing it to be decided by a jury. The logic for that was explained as: "In fact, when the crucial question in a dispute involving compilations is substantial similarity at the level of protectable expression, it is often more reliably and accurately resolved in a summary judgment proceeding. This is so because a judge is better able to separate original expression from the non-original elements of a work where the copying of the latter is not protectable and the copying of the former is protectable. The judge understands the concept of the idea/expression dichotomy and how it should be applied in the context of the works before him."
In explaining how the court then proceeds to analyze the merits of the matter, the court stated "while a creative work is entitled to the most protection, a compilation is entitled to the least, narrowest or "thinnest" protection. In performing the trial court's analysis of "substantial similarity" the appellate court found the court had appropriately modified the definition to accentuate the narrower scope of protection available and had correctly determined that the differences in the protectable expression of the floor plan as a whole, were so significant that, as a matter of law, no reasonable properly-instructed jury of lay observers could find the works substantially similar. For these reasons, the court affirmed the summary judgment.
Kent Holland is a risk management consultant for the environmental and design professional liability unit of Arch Insurance Group, and he is Of Counsel with the law firm of Wickwire Gavin, P.C., with a practice emphasizing construction law.
NOTE: This article originally was published in "ConstructionRisk.com Report", Vol. 11, No. 5 and appears here with permission. Kent Holland is the publisher of "ConstructionRisk.com Report" and principal of ConstructionRisk, LLC. They provide insurance risk management services and construction risk management services, including but not limited to, advice to insurance underwriters; guidance to those procuring insurance; change order and claim preparation, analysis and defense; contract preparation; contract review and contract negotiation.
The comments presented are general in nature, and are not intended to be a legal review or legal opinion. Neither a/e ProNet, Kent Holland, or any organization with whom Mr. Holland may are hereby providing legal services. Any opinions stated herein are solely those of Mr. Holland and are not to be attributed to any other party or organization. The information provided herein is for general educational purposes to assist the insured in understanding potential issues concerning the insurability of certain identified risks that may result from the allocation of risks under the contractual agreement. The insured should seek the advice of legal counsel familiar with construction law and contracts in the jurisdictions where this contract will be executed and performed.
