Axelrod & Cherveny Architects P.C. v. T. & S. Builders Inc.

CASE SUMMARY

FACTS

A group of architects accused a home builder of infringing their copyrights by constructing homes in New York that, at least from the exterior, looked substantially similar to the architects' designs. The architects owned copyrighted designs known as the "Georgetown II." The home builder marketed four homes on Long Island under the model name "the Franklin."

The architects' Georgetown II was marketed with a brochure that contained an artist's rendering of the home's exterior as well as the interior floor plan. The brochure itself was not copyrighted. The home builder's sales literature contained a copy of the first page of the architects' Georgetown II brochure and displayed the Georgetown II's exterior. Some of the home builder's flyers also included floor plans identical or nearly identical to the Georgetown II floor plans.

A field supervisor for the home builder testified during his deposition that it was common practice in the construction industry to obtain brochures from competitors and to use them for reference—not to actually copy a competitor's model. He also testified that, despite the images on the home builder's sales literature, the Franklin homes were "substantially different" due to options requested by the buyers.

ANALYSIS

In an August 2013 order, the court reviewed the two elements necessary to establish copyright infringement: (1) ownership of a valid copyright; and (2) unauthorized copying of the copyrighted work. Only the second element was at issue because the parties did not dispute that the architects had a valid copyright. To prove the second element, the court first looked at the questions of access and substantial similarity between the two homes. The court found the architects had direct evidence of copying because the home builder used Georgetown II sales literature in its advertising for the Franklin. Therefore, the court stated, summary judgment turned on whether the home builder's copying qualified as actionable copyright infringement, namely, whether there was substantial similarity between the Franklin and the protectable elements of the Georgetown II.

The court ordered supplemental briefing from the parties on two issues: (1) whether the home builder's act of copying the Georgetown II's exterior with substantial modifications to the interior could constitute infringement, given that case law instructs substantial similarity must be determined by the work as a whole; and (2) whether the...