imagesA design professional or architectural firm has an uphill battle proving a copyright infringement claim.   Why? Because it is hard…very hard…for a design firm to show that another’s design is substantially similar to their original copyrighted design to warrant a finding of copyright infringement.


This uphill burden has been reaffirmed by the Northern District of Florida in Home Design Services, Inc. v. Turner Heritage Homes, Inc., 2015 WL 1482301 (N.D.Fla. 2015).  In this case, a residential design was copyrighted. The design firm that owned the copyright for the residential design sued a homebuilder for copyright infringement alleging that the homebuilder built 165 custom homes based on the design firm’s copyrighted design.  The jury returned a jury verdict in favor of the design firm for copyright infringement; however, the trial court entered judgment for the homebuilder finding that the design firm failed to prove a copyright infringement claim.  That’s right—the jury returned a verdict finding copyright infringement and the trial court entered a judgment for the homebuilder notwithstanding the verdict.


A leading issue in this case was whether the design firm’s copyrighted design was an original design and whether there were differences between the copyrighted design and the homebuilder’s allegedly infringing design.  The reason being is that in order to prove a copyright infringement claim of an architectural design:


For copyright infringement, a plaintiff must prove: (1) ownership of a valid copyright, and (2) copying of protectable elements. In order to establish ownership of a valid copyright, the plaintiff must prove, among other things, that the work is original.  Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. To establish copying, the plaintiff must show as a factual matter that the defendant copied the protected work, and, as a mixed question of law and fact, that the protected expression itself was copied. In the absence of direct proof of copying, a plaintiff may prove copying by demonstrating that the defendants had access to the copyrighted work and that the works are substantially similar. To show access, the plaintiff need not prove actual viewing and knowledge but simply a reasonable opportunity to view the work.  The test for substantial similarity for architectural works is whether a reasonable jury could find the competing designs substantially similar at the level of protected expression. [S]pacial depictions of rooms, doors, windows, walls, etc. are not protected. [O]nly the original, and thus protected arrangement and coordination of spaces, elements and other staple building components should be compared. Moreover, given the subtle distinction between protected and unprotected expression, the Eleventh Circuit has recognized that judges, rather than juries, are usually better equipped to resolve questions of infringement. The Eleventh Circuit has further instructed that copyright protection in a compilation is thin, and that modest dissimilarities are more significant than they may be in other types of art works.

Home Design Services, supra, at *6.


Focusing on whether the design firm’s copyrighted design was substantially similar to the homebuilder’s home design, the trial court found dissimilarities between the designs including, but not limited to, the porches were different, fireplaces were in different locations, elevations were different, hallways had different dimensions and openings, toilets were positioned differently, the nooks had different windows, master bathrooms contained differences, etc. (you get the point…there were differences).  Although the design differences were slight when comparing architectural designs, the fact remained that there were dissimilarities to preclude a copyright infringement claim.  No matter how modest the dissimilarities truly were, that fact that there were dissimilarities precluded a finding for copyright infringement.


Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.