BY DAVID BOWSER
So, you have a set of architectural plans and are wondering just how much copyright protection is attached to them. The answer? Not much. In 1990, Congress passed the Architectural Works Copyright Protection Act ("AWCP"), and for the last 25 years the courts have been issuing opinions providing us guidance upon what is and what is not protected by copyright as part of that act.
Under the AWCP Act, an architectural work is statutorily defined as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings,” and “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,” such as common windows, doors, and other staple building components.
Accordingly, per the definition, while individual standard features and architectural elements classifiable as ideas or concepts are not themselves copyrightable, an architect’s original combination or arrangement of such elements may be. So there are two major elements that impact copyright claims: 1) you cannot copyright an idea, only original expressions of that idea; and 2) certain elements of architectural design are so common that they are, by law, unprotected.
To prove copyright infringement, a plaintiff must show: 1) ownership of a valid copyright; and 2) copying by the defendant of the protected elements of the copyrighted work. Copying may be established by showing that the defendant had access to the plaintiff’s work and that the two works are “substantially similar.” To determine substantial similarity, the court engages in a two-part inquiry: the allegedly infringing work must be both objectively similar (the “extrinsic test”) and subjectively similar (the “intrinsic test”) to the copyrighted work. The extrinsic test is an objective measure of whether the two works share clear, specific similarities.
Even with these definitions, it can be confusing as to just which parts of architectural plans are subject to copyright protection. A review of many cases of architectural copyright infringement quickly shows that the level of protection for a functional building, for example, is rather thin. As one court described the problem, “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.” Because only the protected elements of an architectural plan can be compared when deciding whether substantial similarity and therefore copyright infringement has occurred, dissection of individual elements of the work is needed to determine the scope of copyright protection before the work can then be considered as a whole.
Original expression is protected by copyright. Copyright only protects expression though, and not the idea behind the expression. Ideas are not protected. Unprotected elements of a copyrighted work can include: 1) ideas, as opposed to expression; 2) expressions that are indistinguishable from the underlying ideas; 3) standard or stock elements (scènes-à-faire); and 4) facts and other public information. A related issue is the merger doctrine, which instructs that some ideas can only be expressed in a limited number of ways and when expression is so limited, idea and expression merge, and expressions merged with ideas cannot be protected lest one author own the idea itself.
Features that are as a practical matter indispensable, or at least standard, in the treatment of a given idea are not protected by copyright. This is known as the doctrine of scènes-à-faire. For example, neoclassical government buildings, colonial houses, and modern, high-rise office buildings are all recognized styles from which architects draw. Elements taken from these styles are not protected.
Likewise, certain market expectations for homes or commercial buildings and design features used by all architects because of consumer demand also get no protection. Any design elements attributable to building codes, topography, structures that already exist on the construction site, or engineering necessity are not protected. Generalized notions of where to place functional elements, how to route the flow of traffic, and methods of construction are unprotected. There is no copyright in a building plan’s design parameters either, because constraints placed on an architect related to how the client plans to use the building do not originate with the architect.
In applying the extrinsic test, only those elements of a work that are protectable can be compared. Once the unprotected elements are filtered out and disregarded, the court considers the scope of the copyright. If few similarities remain after the unprotected elements are set aside, the scope of the copyright is thin, which means that it only protects the copyrighted work from identical copying.
In conclusion, the level of copyright protection depends upon the subject matter and original creativity contained in the plans. One cannot copyright the “idea” of a kitchen. If it were so, only one architect could design kitchens, which would be ridiculous. Purchasers usually expect a kitchen to have a sink, a window over the sink, and counters and cabinets near the sink. Those are standard client expectations and not protected.
To be frank, there are only so many ways to design a two-story, three-bedroom house with all of the code requirements and purchaser expectations. Because none of the elements are protected, copyright protection will extend only to the arrangement and composition. Small differences are usually enough to avoid copyright infringement. As the complexity of the design increases, there should be more and more significant differences between plans to ensure no copyright infringement is occurring. Truly unique designs, such as the Guggenheim or the local Edith Green-Wendell Wyatt Federal Building, will get much more protection than a simple ranch style home.
So while there is usually some copyright protection in those architectural plans you were wondering about, it’s still not much.