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This is a part of a Partial Summary Judgment motion prepared by an IPG Law Clerk in an Architectural Copyright Infringement Case. The following should not necessarily be treated as a current summary of law. The Court issued no ruling on this motion.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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NOW COME DEFENDANTS, and through undersigned counsel of record, move for partial summary judgement pursuant to Rule 56, Federal Rules of Civil Procedure, and more specifically judgment for Defendants, and against Plaintiff, as to the allegations within Plaintiff’s complaint that construction of the residence at , constitutes infringement of Defendant’s alleged copyright in plaintiff’s alleged registered plan for the alleged as referenced in Registration of Copyright Number .The grounds for this motion are as follows.
I. FACTS
Plaintiff’s Complaint alleges at paragraph 10 that “...plaintiff...has been and still is the sole builder entitled to construct homes of the copyrighted design or using the copyrighted architectural plans.” (Plaintiff’s Complaint, paragraph 10.) At Paragraph 18, plaintiff alleges that “Defendant construction of the residence constitutes infringement of Plaintiff’s copyright.” At paragraph 20, plaintiff alleges that the “Defendants’ unauthorized...construction of the residence...[is] in derogation of and injurious to plaintiff’s exclusive rights as author of the design of the house know as the , and as owner of the copyright therein, all to the damage of plaintiff in violation of Section 106 of the Copyright Act of 1976, 17 U.S.C. Section 106 as amended.” (Plaintiff’s Complaint, paragraph 20).
Defendant has in fact constructed a home at , New York. However, there are no circumstances under which such construction might, as a matter of law, constitute infringement. Even if it were assumed that the construction of the home constitutes a construction of the Plaintiff’s plans (which is not the case), and even if it were assumed that the plans are copyrightable and subject to no other defense (which is not the case), such construction would not constitute copyright infringement. As to architectural works it has universally been held that an infringement must instead be comprised of the making of an unauthorized copy of the plans. This has been the law for over one hundred twenty five years.
II. ANALYSIS.
A. The Standards Governing Consideration of Motion for Summary Judgement.
The Court may grant Defendant’s Motion for Partial Summary Judgement “if the pleadings, depositions, answers to interrogatories, and admissions on file...show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Silver v. City Univ., 947 F.2d1021, 1022 (2d Cir. 1991); American Express Travel Related services Co. V. Accu-Weather, Inc., 849 F. Supp 233, 238 (S.D.N.Y. 1994), L.K. Comstock & Company v. Perini Corporation, 903 F.Supp 609, 611 (S.D.N.Y. 1995) . The Supreme Court has lowered the movant’s burden on a motion for summary judgment and increased the discretion accorded to judges in granting directed verdicts. See Matsushita Elec. Indus. Co. V. Zenith Radio Corp., 475 U.S. 574 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Celotex Corp. V. Catrett, 477 U.S. 317 (1986). As a result, “summary judgement can be relied upon more so than in the past to weed out frivolous lawsuits and avoid wasteful trials.” Charles A. Wright et al., Federal Practice & Procedure Section 2727, at 35 (Supp.1994).
B. The Allegations of Copyright Infringement Due To Construction of Plans.
According to the law in this circuit, construction of a building cannot infringe copyrightable plans. In Muller v. Triborough Bridge Authority, the court held that the construction of the Cross Bay Parkway Bridge, “a system of ramps, viaducts, loops, and traffic lanes,” did not infringe the plaintiff’s copyrighted bridge plans. 43 F.Supp. 298 (S.D.N.Y. 1942). “Plaintiff’s copyright of a...novel bridge approach....does not prevent anyone from using and applying the system of traffic separation set forth.” Id. at 300. The Muller court used the doctrine set forth by the Supreme Court in Baker v. Selden, 10 U.S. 99 (1879), to reach its conclusion. Citing Baker, the Muller court held, just as “a claim to the exclusive property in a peculiar system of bookkeeping cannot be maintained....by the author of a book in which the
system is exhibited and explained,” the Plaintiff’s copyright in the bridge system does not prevent anyone from building the bridge system itself. Muller, at 299.
In “a logical extension of the Muller holding and its principled analysis of the Baker doctrine,” the court in Demetriades v. Kaufmann, 680 F.Supp. 658, 664 (S.D.N.Y. 1988), held that the plaintiffs, which held the copyright on the architectural plans for a house, could not enjoin construction of the defendant’s house in Scarsdale, N.Y. Architectural plans, the court held, “depict a useful article,” and, “consistent with Baker, [the] owner...without benefit of a design patent, does not obtain a protectable interest in the useful article depicted by those plans.” Id. at 663. As a result the Court refused to find infringement, holding, “construction of a building imitating that depicted in copyrighted architectural plans does not...constitute infringement of those plans. Although individuals are not free to make unauthorized copies of copyrighted architectural plans, they remain free to duplicate houses depicted in those plans.” Id. at 666.
The court in Sparaco v. Lawler, Matusky, Skelly Engineers, LLP, 60 F.Supp.2d 247 (S.D.N.Y. 1999) also asserts that only copying the copyrighted plans can constitute infringement. Id. at 251. In ruling that Defendant builders, among others, did not infringe the plaintiff’s copyrighted site plans for a New York development, the court held, “As long as...the builder who carries out the architect’s vision did not make copies of Plaintiff’s copyrighted work (i.e., his site plan), they did not violate his copyright.” Id. at 251.
These New York cases illustrate the holding that copyright law does not constitute “construction” as an infringement because architectural plans depict a useful article, and “a copyright in a drawing or picture of a non-artistic object of utility does not preclude others from making the three-dimensional object portrayed in the drawing or picture.” DeSilva Construction Corp. v. Herrald, 213 F.Supp. 184, 198 (M.D.Fl. 1962). The Copyright Law has never given an author the exclusive right to make a useful article that he or she has written about or painted. Architects and building designers are not given greater rights than other authors in general. They are held to the same limitations. The Copyright Act does not value their original works of authorship over that of a painter, a writer, or any other type of author.
This doctrine, as applied to architectural plans, is consistent with the rulings in other fields which generally state that construction of any useful article does not infringe the copyrighted drawing or depiction of that article. In National Cloak & Suit Co. v. Kaufman, 189 F. 215 (M.D.Pa. 1911), the plaintiff owned the copyright subsisting pictures of women’s garments. Citing Baker, the court held that the plaintiff could not, “claim to monopolize the manufacture...of the...apparel depicted by...its copyright.” Id. at 219. Further, a copyrighted drawing of a dress was not infringed by the making and selling of the dress in National Cloak & Suit Co. v. Standard Mail Order, Co., 191 F.528, (S.D.N.Y. 1911). The court held that, “a manufacturer of unpatented articles cannot practically monopolize their sale by copyrighting a catalogue containing illustrations of them.” Id. In addition, Lamb v. Grand Rapids School Furniture Co., 39 F. 474, (W.D.Mich. 1889), held that where the plaintiff owned a copyright in pictures of articles of furniture, “the defendants may lawfully manufacture just such goods.” Id. at 475. The court in American Dental Association v. Delta Dental Plans Association, 126 F.3d 977, 980 (7 Cir. 1997), in ruling that the Defendant could use the Plaintiff’s taxonomy, but not copy the taxonomy itself, compared the taxonomic code to architectural blueprints. The court stated, “Consider blueprints: other architects can imitate the style of the completed building; they just can’t copy the plans.” These cases embrace a fundamental and historically rooted principle of copyright law, and preserve inherent limitations in the law which have been universally followed for 125 years since the Supreme Court’s 1879 ruling in Baker.
All other jurisdictions in which this issue has been decided are in unanimous accord with the law in the Second Circuit. Citing Muller, the court in DeSilva Construction Corp. v. Herrald, 213 F.Supp. 184, 195 (M.D.Fl. 1962) restated, “the unanimous view of respected text writers that...the architect does not have the exclusive right to build structures embodied in his technical writings.” Id. at 195. The court in Imperial Homes Corporation v. Lamont, also held that a structure was not an infringement of architectural plans because: “no copyrighted architectural plans...may clothe the author with the exclusive right to reproduce the dwelling pictured.” 458 F.2d 895, 899 (C.A.5. 1972). The court references a strikingly similar set of facts at issue in Scholz Homes, Inc.v. Maddox, 379 F.2d 84 (C.A.6. 1967). Here, the court stated that the plaintiff’s contention that the defendant’s home was a copy of his copyrighted booklet of plans was, “answered by Baker v. Selden...[because] the possession of the copyright in the plans gives no exclusive right to construct the building.” Id. at 86. Other courts have voiced support for this application of Copyright Law to architectural plans as well. Synthesizing the holdings of several previous decisions, including Muller and Demetriades, the court in Robert R. Jones Associates, Inc. v. Nino Homes, 858 F.2d 274 (C.A.6 1988), held, “The rule which emerges from these cases is that one may construct a house which is identical to a house depicted in copyrighted architectural plans, but one may not directly copy those plans and then use the infringing copy to construct the house.” Id. at 280. A similar analysis was used by the court in Johnson v. Jones, 921 F.Supp. 1573 (E.D.Mich. 1996), which held that the Defendant’s infringed Plaintiff’s architectural drawings when they copied the plans themselves. Id. at 1583. The court found that the Defendants had “copied Plaintiff’s...drawings by tracing them” and used the copies to obtain a building permit.
The leading treatise on Copyright, Nimmer on Copyright, has consistently expressed the view that construction of a structure does not constitute infringement. Not only does Nimmer agree, Nimmer makes it clear that the Architectural Works Protection Act expressly adopts the law as it pertains to the construction of architectural plans prior to the enactment date:
The question remains whether, absent unlawful reproduction of the copyrighted plans, construction simpliciter based on such plans constitutes an infringement of the copyright owner’s rights in the plans. To answer that inquiry, the current Act simply incorporates the law as it existed prior to the effective date of the current Act. In particular, Section 113(b) provides: This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.” (emphasis added). Nimmer §2.08 [D][2][a], pg. 2-121, Aug. 2003, citing 17 U.S.C. 113(b).
To allow an infringement action to be maintained based on Plaintiff’s contentions and the predicates in paragraphs 10, 18, and 20 of Plaintiff’s Complaint, is to grant more protection to architects than has ever been allowed by the law. Without a patent, no author, has domain to exclude the making of a useful article that he or she incorporates in his or her art. An architect’s copyright cannot prevent another from constructing the useful article embodied within in it. Thus, whether there is an infringement in this case must be determined solely on the basis of whether or not the Defendants made illegal copies of the alleged copyright-holder’s plans.
III. CONCLUSION.
Partial Summary Judgment is appropriate in this case. It should be rendered to “weed out” the “frivolous” components of this case, and to prevent “waste” in discovery, including the enormous expense of hiring experts and the highly invasive inquiry required in developing documentation for the court to conduct what would be an irrelevant analysis of the features of Defendant’s “construction” to plaintiff’s alleged work. Charles A. Wright et al., Federal Practice & Procedure Section 2727, at 35 (Supp.1994). Only one legal conclusion can be drawn based on any version of the facts in this case, (whether the Defendants’ assertions are accepted, or whether the Plaintiff’s assertions are accepted) and thus any factual dispute is immaterial. There are no circumstances where the construction of Defendant’s house would, as a matter of law, constitute an infringement or violation of 17. U.S.,C. Section 106.
In light of the above, Defendants respectfully request that partial summary judgment be granted for them, and against Plaintiff, as to Plaintiff’s contention that construction of the residence constitutes copyright infringement. Defendants further request that they be awarded the attorneys fees and costs associated with the making of this motion, any reply, and its consideration by this Court.
Respectfully Submitted,
Attorney for Defendants
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