In the competitive world of moderately priced, residential community construction, a homebuyer might be excused for thinking, “Seen one. Seen ’em all.” With structural elements dictated by industry standards and stylistic elements by prevailing taste, it’s easy to understand the buyer’s thinking.
But builders regard every home plan as uniquely theirs and every nuance as a selling point. Aesthetic distinctions are few and jealously guarded.
Hence the regular treks to court over claims of copyright infringement as architects and developers seek to protect their “production homes” — homes frequently constructed according to stock plans rather than unique, architect-designed custom homes.
You might expect that courts, all applying U.S. copyright law, would decide these matters in a relatively uniform manner. Not so. The 11th Circuit, encompassing Alabama, Georgia and Florida, has developed a distinctive approach. Where architectural works at issue in a lawsuit bear a striking resemblance to each other, the 11th Circuit, unlike other circuits, turns specifically to their dissimilarities to help determine whether infringement exists. District courts of the 11th Circuit follow suit.
Recently decided, Jeff Benton Homes v. Alabama Heritage Homes appears to be the first such case reported out of a federal district court in Alabama. This articulate decision applies fresh paint to an important guidepost for Alabama litigants.
Jeff Benton Homes Inc., a Huntsville firm that opened in 1987, commissioned a design in 1997 for a single-story, 3, 000-square-foot house with an asymmetrical front elevation featuring a prominent entranceway. Benton designated this its “2715” plan. Four years later, Benton flipped the plan left to right, embellished it and designated the result its “2820.” The 2715 and 2820 eventually became Benton’s best-selling plans.
In 2007, facing declining orders for custom designs, Alabama Heritage Homes Inc. purchased an independent contractor’s plan, named it “Dorothy” and also went into production in Huntsville.
Claiming that Dorothy infringes its copyrights on 2715 and 2820, Benton sued.
To support its defense, Alabama brought in Birmingham architect Jeremy Erdreich, who had 14 years’ experience designing residences in Birmingham.
Erdreich compared the 2715 and Dorothy plans and nine similar plans he found online, finding some 28 areas of overlap. But of those overlaps, he testified, 20 were “functional” elements, dictated by external forces like building codes, and only eight were what he called “creative” elements.
Other creative elements, he maintained, were substantially different. “There [is] a limited variety of ways that a roughly 3, 000 [square-foot] square plan can be divided once functional demands of market and economy are met, ” he testified. “Even modest dissimilarities in house plans at this market segment become important.”
Copyrights in Architectural Works Are “Thin”
In a claim for copyright infringement, the plaintiff must show ownership of a valid copyright and copying by the defendant. Because infringers are rarely caught in the act, courts accept circumstantial evidence that the accused had access to the copyrighted work and the plaintiff’s and defendant’s works are substantially similar.
Since architectural works are, by Copyright Act definition, compilations of protectable and unprotectable features they have only “thin” protection, courts have held, and winning an infringement case may depend on showing “supersubstantial” similarity.
Benton lost its case, as the court ruled that protecting its plans would be “unduly restrictive — and would cut against the policy favoring the free flow of ideas and information — to grant plaintiff a monopoly on the design of a roughly 3, 000-square-foot home plan using a square box design; open floor plan; three bedrooms separated from a master bedroom by a kitchen, great room, and breakfast area; formal living room and dining room flanking a front entry foyer; laundry room; garage; and terrace, even if all of those elements are arranged in the same general configuration.”
“Those elements, and even the general arrangement of them in the 2715 and 2820 house plans, are simply too common to warrant copyright protection, ” the ruling continued.
“This conclusion is amplified, ” said the court, “by the overwhelming number of differences between plaintiff’s 2715/2820 plans and defendants’ Dorothy plan.”
What the Ruling Means
“Protectable” and “unprotectable, ” “functional” and “creative, ” “architectural work” and “compilation” — these terms are commonly found in decisions pertaining to architecture by courts throughout the country. Different circuits ground their decisions in different philosophies, which over the years come to serve as predictable guideposts for plaintiffs and defendants alike litigating in those courts.
While the 11th Circuit does not dispense with the customary substantial similarity analysis, it doesn’t stop there.
“Substantial dissimilarity” is intended to prevent the implicit granting of a monopoly at common law where none is granted by the Copyright Act itself.
Mitch Tuchman is an intellectual property attorney in the Research Triangle Park, NC, office of Womble Carlyle Sandridge & Rice LLP. He writes frequently about the interplay between copyright and architecture.
Text by Mitch Tuchman