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Best Practices:

Copyright or Copy Wrong? Sixth in a Series

by Gregory Hancks, AIA


You may know (or think you know) your basic rights and obligations under copyright law. But what misconceptions are commonly held by people you work with, your boss or employees, your clients, or your consultants? You might be surprised.

This is the sixth in a series exploring aspects of copyright that are frequently misunderstood. In this installment, we consider what it takes to prove infringement of a copyright.

Infringement? Or not?

A copyright infringement case in Florida decided in December 2008 by a federal court of appeals provides an opportunity to look at what constitutes infringement of architectural copyright.

Since 1992, Intervest Construction, Inc., has offered a predesigned single-family residence named “The Westminster” in communities being developed by the company. The single-story design is shown in the accompanying floor plan, which is published as part of the opinion issued by the court of appeals in the case. (A front view of the house is also shown on the company’s web site.)

In its opinion, the court does not say whether an architect designed the Westminster for the developer. As noted in the fourth article in this series, however, a building design can qualify for copyright protection as an “architectural work” regardless of whether it was created by an architect.

In 2002, Canterbury Estate Homes, Inc., another homebuilder based in Florida, began offering a model single-family home design called “The Kensington.” The Kensington is also a single-story design, although it includes a “bonus room” above the garage. The Kensington design is shown in the accompanying floor plan, which is also published as part of the court’s opinion.

Intervest sued Canterbury for copyright infringement in federal district court in Florida.

Generally speaking, to prove copyright infringement, a plaintiff must prove each of the following:

    (1) ownership of the relevant copyright

    (2) that the defendant copied the copyrighted work (unless there is direct evidence of copying, this may require showing that the defendant had an opportunity to copy or access to the copyrighted work), and

    (3)  “substantial similarity” between the copyrighted work and the alleged copy.

With respect to the last item listed, the similarity required is between the defendant’s work and those portions of the copyrighted work that are protectible by copyright. Similarities between the nonprotectible elements of the copyrighted work and the defendant’s work are not relevant to this determination.

In the Florida case, the federal district court issued a summary judgment ruling that The Kensington was not “substantially similar” to The Westminster. As a consequence of that ruling, even if Intervest could prove both (1) that it owned a copyright in The Westminster design and (2) that The Kensington design was created at least in part by copying The Westminster, Canterbury had not infringed on Intervest’s copyright because the two designs were not similar enough. Intervest appealed, and the United States Court of Appeals for the Eleventh Circuit considered the matter.

What do you think?

The Eleventh Circuit’s opinion, Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008), in short agreed with the district court that the two designs were not, in fact, substantially similar. The path the court traveled to reach that conclusion includes some points that architects may find striking.

First, Intervest’s intellectual property at issue is not the Westminster floor plan drawing itself, which is unarguably an “architectural plan” protectable under the copyright statute. The copyright subject matter at issue in the case is the “architectural work” depicted in that drawing—in other words, the design of the building. (This distinction is discussed in the fourth article in this series.) Notably missing from the court’s analysis, however, is any elevation or section drawing of the building, or any three-dimensional architectural illustration. The court’s evaluation of The Westminster and The Kensington as architectural works is based solely on their floor plans.

Second, the court ruled that architectural works are akin to “compilations,” that is, works formed by the “collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work or authorship.” Under copyright law, protection for a compilation is frequently described as “thin” because the creator of the compilation might not hold any copyright in the individual parts, which themselves may not be original to the compilation’s creator.

Think of a book that is a collection of essays by various authors. Or think of a telephone directory, as the court did in the case of evaluating the Westminster and Kensington designs. Telephone directory publishers assemble and arrange names and phone numbers, which is factual information that is not by itself copyrightable.

The court’s view that an architect’s work consists of selecting, coordinating, and arranging standard building components may be the result of drawing broad conclusions about architecture from looking at spec house plans. One could perhaps draw the same conclusion about the works of Shakespeare—that they are only compilations because he merely selected and arranged the standard letters of the alphabet. In any event, it is currently the law in Florida, Georgia, and Alabama, which is the territory under the jurisdiction of the Eleventh Circuit, that architectural works are comparable to “compilations” and are entitled only to “thin” copyright protection.

After defining its approach to reviewing the Westminster and Kensington floor plans, the court’s opinion describes the numerous detailed differences between them: only one design has windows in the garage, only one design has a “bonus room” above the garage, door swings differ between the two designs, one design’s “nook” is rounded while the other’s is squared off, and so on. In the end, the court concluded that these many dissimilarities and differences between the two designs are “so significant” that the designs are not substantially similar. As a result, the court ruled that The Kensington is not an infringement of Intervest’s copyright in The Westminster.

Who gets to decide?

Careful readers with an interest in legal process will have noted that the court rulings in this case were summary judgments. As a general matter, a determination of copyright infringement is a matter for a jury to decide upon reviewing evidence presented at a trial. In the Intervest opinion, the court of appeals explained why it was appropriate for judges to decide the question of “substantial similarity”:

    [I]n examining compilations wherein only the arrangement and coordination of elements which by the nature of the work (here architectural floor plans) are sure to be common to each of the works and are not copyrightable themselves (spatial depictions of rooms, doors, windows, walls, etc.), the already difficult tasks may become even more nuanced. Because a judge will more readily understand that all copying is not infringement, particularly in the context of works that are compilations, the “substantial similarity” test is more often correctly administered by a judge rather than a jury—even one provided proper instruction. The reason for this is plain. The ability to separate protectible expression from non-protectible expression is, in reality, a question of law or, at the very least, a mixed question of law and fact. It is difficult for a juror, even properly instructed, to conclude, after looking at two works, that there is no infringement where, say, 90% of one is a copy of the other, but only 15% of the work is protectible expression that has not been copied. Part of the problem, which we have recognized, is that the term “substantial similarity” has not always been used with precision. . . . When courts have dealt with copyright infringement claims involving creative types of works, “substantial similarity” has been defined as existing “where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”

The lesson may be that a finding of copyright infringement is not assured even if copying took place and it is apparent to a non-lawyer that the copier appropriated someone else’s work.


Further information is available from the U.S. Copyright Office. Application of copyright law in particular situations may be complex. You should consult a qualified lawyer when you need advice about copyright issues in your business.

To request a copy of this article that includes supporting citations or to ask a copyright question that could be discussed in a future article in this series, send an e-mail to


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