constructionattorneyblog

No right of contribution in copyright case

A recent trial court decision in Equity Builders v. Russell, (USDC, N.D. Ill, Oct. 17, 2005) held that there was no right to contribution under the Copyright Act. In that case, the plaintiff sued an architect, builder and owner for copyright infringement. The architect filed a cross-claim for contribution against the owners. The court dismissed the cross-claim.

Housing boom leads to copyright litigation increase

According to this article in the Minneapolis-St. Paul Business Journal, copyright litigation over single family homes is a booming business.

Copyright -- World Trade Center

According to an article in the New York Times, August 11, 2005, a copyright suit against two of the designers of the new World Trade Center, Skidmore Owings and Merrill and David Childs, will be allowed to continue.

A federal judge ruled yesterday that there were enough similarities between David M. Childs's 2003 design for the Freedom Tower at the World Trade Center site and a 1999 student architectural project that a lawsuit against Mr. Childs for copyright violation could proceed.

The student, Thomas Shine, now an architect in Brookline, Mass., sued Mr. Childs and his firm, Skidmore, Owings & Merrill, last year. He charged that they had copied Freedom Tower from Olympic Tower, Mr. Shine's project at the Yale School of Architecture, which Mr. Childs saw and admired as a jurist critiquing students' work. Skidmore denied the allegation. And the resemblance.

Judge Michael B. Mukasey, chief judge of the Federal District Court in Manhattan, said in his ruling yesterday that some lay observers "might find that the Freedom Tower's twisting shape and undulating diamond-shaped facade make it substantially similar to Olympic Tower, and therefore an improper appropriation" of copyrighted artistic expression.

This will be an interesting case to watch.

Here is a press release by the plaintiff's firm.

Registering Copyright as Prerequisite for filing suit

The 10th Circuit Court of Appeals, in La Rensolana Architects v. Clay Realtors Angel Fire, has issued an opinion examining the law behind the requirement that copyright registration is required before an infringement action may be filed:

Two conflicting interpretations of the Act's registration requirement have been upheld by circuit courts: 1) registration occurs when the copyright owner submits an application for registration to the copyright office, or, conversely 2) registration occurs when the copyright office actually approves or rejects the application. We hold that the second interpretation is correct. The Copyright Office must approve or reject the application before registration occurs or a copyright infringement action can be brought.

The court rejected the line of cases allowing commencement of a suit prior to the actual acceptance or rejection of the copyright application.

Copyright Infringement costs $6 Million

This is from an article today in the Deccan Herald:

Real estate mogul Fred C Sands thought he had commissioned the design for a $20 million Bel-Air dream house that would be like no other.

Then two years ago, a couple of architects took a fateful drive down a winding street about seven miles away in Beverly Hills.

At a construction site, one architect remarked on the fine detailing on a pediment piece over a doorway. Inside, the two found striking similarities to the Tuscan-style villa that their boss, William Hablinski, had just spent more than 3,800 hours over a year and a half creating for Sands. 

“This was a jewel box, our jewel box, and somebody ripped it off,” Sands said. “Hablinski promised us this would be one of a kind.”

Outraged on his own and on behalf of his clients, Hablinski filed a lawsuit against the builders and owners of the Beverly Hills property. Referring to the Beverly Hills property as the “copycat house”, the suit alleged copyright and trademark infringement, unfair competition and other complaints.

After a three-week trial in Los Angeles, a six-person jury ruled this month in Hablinski’s favour and awarded him nearly $6 million. The jury found that the defendants conspired with a former Hablinski employee to copy plans for the Sands house and use them to build the Beverly Hills home.

Full story here.

Copyrights: Proving Copyright Damages in Architecture Case

The recent case of Van Brouck & Assoc v. Darmik, Inc., 329 F.Supp.2d 924 (E.D.Mich, 2004), provides a good overview of the methodology of damages calculation. The case involved a defendant who infringed on an architect's copyrighted plans for a single family home. The architect had charged the original owner $15,000 for plans. The infringer wound up paying the architect a total of $181,500.46.

Copyright: Non-dischargeable Debt - Fraud

A recent bankruptcy case discusses copyright issues in the context of an adversary proceeding to have certain debt declared to be non-dischargeable. In re Olson, 2005 WL 993026 ((Bankr.N.D.Iowa) April 21, 2005).

Olson was a developer who met Dr. Sneller, president of Integrated. Sneller wanted to have a new clinic constructed, and Olson convinced Dr. Sneller to hire him to manage the project. During the initial stages, Olson obtained a set of architectural plans, which he ultimately had copied without permission. This court proceeding followed Olson's bankruptcy. Dr. Sneller convinced the court that Olson had acted fraudulently concerning the architectural plans ....

Architectural Works: Copyright

In T-Peg, Inc. v. Isbitski, 2005 WL 768594 (D.N.H.), April 6, 2005, the court discusses the Architectural Works Protection Act ("AWPA"). Under pre-AWPA law, a building was not considered a copy of the underlying plans, and construction of the structure did not constitute infringement. Of course, if the underlying plans were copied in the course of that construction, there would be infringing activity.  The court here left open the question of whether, post-AWPA, a building can be a copy of an architectural work, although that was, presumably, what AWPA was meant to establish.

In this case, the plaintiff claimed that its work was infringed by the design and construction of a structural frame of a building. The court found that the frame did not reflect any particular "overall form" or "arrangement and composition of spaces and elements. The court concluded that, as a matter of law, neither the shop drawings nor the structure was so similar to the plaintiff's architectural work so as to constitute copyright infringement.

Architects: How to apply for Copyright Registration

The following article is taken from the Sabo & Zahn e-newsletter of April, 2005. It gives an overview of how design professionals can register their copyrights. Although an author has a copyright in a work from the moment of creation, registration is a prerequisite for filing an infringement action and for obtaining certain other relief, such as statutory damages. Read the article ...

Copyright: Architect vs. Developer

This case came out of the Federal District Court in Florida on May 2, 2005. Home Design Services, Inc. V. Park Square Enterprises, Inc., 2005 WL 1027370. (M.D. Fla.). The plaintiff is an architectural firm that designs and sells plans for residential homes. The defendant is a construction firm that develops and constructs residential homes. Plaintiff alleged copyright infringement of two of its plans by the defendant. In ruling on cross-motions for summary judgment, the trial court’s opinion touches on some interesting issues that are often encountered in this type of litigation, including the following:

• whether there was a transfer of copyright ownership;
• who bears the burden of proof of damages and profit elements;
• the effect of late registration;
• affirmative defenses, including copyright misuse, fair use, unclean hands, statue of limitations;

The court also addresses counterclaims involving slander of title and unfair competition.