Scholz Design, Inc. v. Sard Custom Homes, LLC, No. 11-3298 (2d Cir. 2012)
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Scholz Design created technical drawings for three homes and submitted them to the Copyright Office in 1988 and 1989 with front elevation drawings showing the front of the houses surrounded by lawn, bushes, and trees. Scholz obtained copyrights. In 1992 Scholz entered an agreement permitting Sart to build homes using the plans, for a fee of $1 per square foot of each house built. The agreement required that Sard not "copy or duplicate any of the [Scholz] materials nor . . . [use them] in any manner to advertise or build a [Scholz Design] or derivative except under the terms and conditions of the agreement." Scholz claimed that after termination of the agreement, Sard and real estate companies posted copies of the drawings on advertising websites and sued for violation of copyrights, 15 U.S.C. 1051, breach of contract, and violations of the Digital Millennium Copyright Act, 17 U.S.C. 1201. The district court dismissed, finding that the copied images did not fulfill the intrinsic function of an architectural plan. The Second Circuit reversed. Architectural technical drawings might be subject to copyright protection even if they are not sufficiently detailed to allow for construction.
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11-3298 Scholz Design v. Sard Custom Homes 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2011 4 (Argued: February 23, 2012 Decided: August 15, 2012) 5 Docket No. 11-3298 6 ------------------------------------- 7 Scholz Design, Inc., 8 Plaintiff-Appellant, 9 - v - 10 11 Sard Custom Homes, LLC, Prudential Connecticut Realty,* & Coldwell Banker Residential Real Estate, LLC, 12 Defendants-Appellees. 13 ------------------------------------- 14 Before: 15 LEVAL, SACK, and HALL, Circuit Judges. Appeal from a judgment of the United States District 16 Court for the District of Connecticut (Janet Bond Arterton, 17 Judge) granting defendants' motion to dismiss. 18 the district court erred in deciding that because the 19 architectural drawings at issue did not contain a level of detail * We conclude that By letter dated October 25, 2011, counsel for Prudential filed a letter with the Clerk of Court informing the Court that "the issues being pursued in the appeal do not involve matters that were litigated by Prudential before the District Court." Letter dated October 25, 2011, from Patrick M. Fahey, Esq. to Office of the Clerk, at 1. Prudential has thereafter not participated in this appeal, although it remains technically a party to it listed as a defendant-appellee in the caption. 1 sufficient to enable construction of homes based on them, they 2 were not protected by the Copyright Act. 3 the drawings are sufficiently original to receive protection as 4 "pictorial, graphic, [or] sculptural works," 17 U.S.C. 5 § 102(a)(5), under the Copyright Act, and we reverse the judgment 6 of the district court insofar as it held otherwise. 7 court dismissed the plaintiff's claims for breach of contract and 8 violations of the Digital Millennium Copyright Act based on its 9 conclusion that the drawings were not protected by copyright, we We also conclude that Because the 10 vacate its dismissal of those claims and to that extent remand 11 the case to the district court. 12 13 14 15 16 17 Reversed in part; vacated and remanded in part. Appearances: LOUIS K. BONHAM, Osha Liang, LLP, Austin, TX (Holly M. Polglase, Hermes, Netburn, O'Connor & Spearing, P.C., Boston, MA, on the brief) for PlaintiffAppellant. 18 19 20 21 JOHN J. ROBACYNSKI, Alan J. Rome, Rome, Clifford, Katz & Koerner, LLP, Hartford, CT, for Defendant-Appellee Sard Custom Homes, LLC. 22 23 24 25 THOMAS J. FINN, Paula Cruz Cedillo, McCarter & English LLP, Hartford, CT, for Defendant-Appellee Coldwell Banker Residential Real Estate, LLC. 2 1 SACK, Circuit Judge: 2 BACKGROUND 3 The plaintiff-appellant, Scholz Design, Inc. 4 ("Scholz"), alleges that three front-elevation1 architectural 5 drawings of homes it designed in the late 1980s were copied and 6 posted on various websites by the defendants in violation of 7 Scholz's copyrights. 8 breach of contract and violations of the Digital Millennium 9 Copyright Act, 17 U.S.C. § 1201, et seq. 10 The plaintiff also makes related claims for Scholz created technical drawings, or blueprints, for 11 three homes -- which it called the "Springvalley A," 12 "Wethersfield B," and "Breckinridge A" -- and submitted them to 13 the Copyright Office in 1988 and 1989 together with the front 14 elevation drawings that are the subject of this suit, each 15 showing the appearance of the front of the houses surrounded by 16 lawn, bushes, and trees. 17 Homes, LLC, No. 11-3298, Joint Appendix ("J.A.") at 73, 76, 87 18 (2d Cir. Oct. 11, 2011).2 19 copyrights based on all these submissions. See Scholz Design, Inc. v. Sard Custom Scholz was granted registration of 1 An "elevation" is a "scale drawing of the side, front, or rear of a structure." Am. Heritage Dictionary 580 (4th ed. 2006). 2 These images and the allegedly infringing uses at issue may be viewed at http://www.ca2.uscourts.gov/scholzdesign.htm. 3 1 In February 1992, Scholz and Sard Custom Homes ("Sard") 2 entered into an agreement (the "Builder Agreement I") permitting 3 Sard to construct homes using Scholz's home plans, including 4 these three designs. 5 The three-year contract required Sard to pay Scholz $1 per square 6 foot of each home constructed using its plans, up to a maximum of 7 $50,000 a year. 8 contract for another three-year term in 1995 (the "Builder 9 Agreement II"). See Builder Agreement I at 1-2, J.A. 97-98. Id. at §§ 5,9,10. Scholz and Sard renewed the Builder Agreement II at 1-2, J.A. 100-101. Both 10 agreements required that Sard not "copy or duplicate any of the 11 [Scholz] materials nor . . . [use them] in any manner to 12 advertise or build a [Scholz Design] or derivative except under 13 the terms and conditions of the agreement." 14 at 1; Builder Agreement II at 1. 15 Builder Agreement I Scholz alleges that, after the termination of Scholz s 16 agreement with Sard and in a manner not permitted by the 17 agreement, Sard and co-defendant Prudential Connecticut Realty 18 ("Prudential") posted copies of Scholz's copyrighted drawings of 19 the Springvalley and Wethersfield homes on two different websites 20 to advertise Sard s "ability" to build the homes. 21 ¶ 15. 22 Banker Residential Real Estate, Inc. ("Coldwell Banker") copied 23 Scholz's copyrighted image of the Breckinridge design on Coldwell 24 Banker's website for the same unpermitted purpose. Am. Compl. Scholz also alleges that Sard and co-defendant Coldwell 4 Scholz 1 further alleges that Sard, Prudential, and Coldwell Banker "may 2 have used, reproduced, displayed, distributed, marketed or 3 advertised" those designs through other means in addition to the 4 websites identified. 5 Am. Compl. ¶¶ 18,33. In October 2010, Scholz brought suit against the three 6 defendants in the United States District Court for the District 7 of Connecticut. 8 two counts of copyright infringement, two violations of the 9 Lanham Act, 15 U.S.C. § 1051 et seq., breach of contract, and The February 1, 2011, amended complaint alleges 10 violations of the Digital Millennium Copyright Act ("DMCA"), 17 11 U.S.C. § 1201 et seq. Am. Compl. ¶¶ 9-72. 12 The defendants moved to dismiss the complaint, arguing 13 inter alia that the pictures "could not have been copyrighted as 14 architectural works because, the copyrights having been granted 15 in 1988 and 1989, they predate the [Architectural Works Copyright 16 Protection Act ("AWCPA"), Pub. L. No. 101-650, tit. VII (1990)] 17 and that the conceptual nature of these depictions means that 18 they are not protected by Scholz's copyright because they contain 19 insufficient detail from which a building could be constructed." 20 Scholz Design, Inc. v. Sard Custom Homes, LLC, No. 10-cv-1681, 21 2011 WL 2899093, at *2, 2011 U.S. Dist. LEXIS 76663, at *6 (D. 22 Conn. July 15, 2011). 23 Judge) agreed. 24 reasoned that "copyright protection extends to the component The district court (Janet Bond Arterton, The court, in its "Ruling on Motions to Dismiss," 5 1 images of architectural designs to the extent that those images 2 allow a copier to construct the protected design," and therefore 3 "the copied images do not fulfill the intrinsic function of an 4 architectural plan and thus the act of copying them does not 5 violate any right protected by a copyright for architectural 6 technical drawings." 7 *9. 8 Id. at *3, 2011 U.S. Dist. LEXIS 76663, at Because it concluded that the plaintiff's amended 9 complaint did not state a claim for copyright infringement, the 10 district court also granted defendants' motion to dismiss claims 11 alleging violations of the DMCA and breach of contract, which, in 12 the district court's view, required that the plaintiff have a 13 valid copyright infringement claim.3 14 LEXIS 76663, at *14. 15 Id. at *4, 2011 U.S. Dist. The plaintiff appeals. 3 The district court also dismissed two claims brought under the Lanham Act. See Scholz Design, 2011 WL 2899093, at *3-*4, 2011 U.S. Dist. LEXIS 76663, at *6-*8. The plaintiff does not appeal the dismissal of those claims, which were brought against all defendants. This accounts for Prudential's withdrawal from these proceedings -- Prudential had only filed a motion to dismiss in the district court with regard to the Lanham Act claims, and did not ask for dismissal of the copyright infringement, breach of contract, or DMCA claims against it. See note *, supra. 6 1 DISCUSSION 2 I. Standard of Review 3 We review a district court's grant of a motion to 4 dismiss de novo, accepting all factual allegations in the 5 complaint as true, and drawing all reasonable inferences in the 6 plaintiff's favor. 7 Cir. 2011); Fed. R. Civ. P. 12(b)(6). Flagler v. Trainor, 663 F.3d 543, 546 n.2 (2d 8 II. Copyright Infringement 9 In order to demonstrate copyright infringement, a 10 plaintiff must show ownership of a valid copyright and copying of 11 the protectable elements of the copyrighted work.4 12 Inc. v. Healthcare Mgmt. Solutions, Inc., 290 F.3d 98, 109 (2d 13 Cir. 2002). 14 facie evidence of ownership of a valid copyright, but the alleged 15 infringer may rebut that presumption. 16 Hometown Info, Inc., 375 F.3d 190, 192 (2d Cir. 2004) (citing 17 17 U.S.C. § 410(c)). 18 must be original - that is, it must be independently created by See Medforms, A certificate of copyright registration is prima MyWebGrocer, LLC v. To qualify for copyright protection, a work 4 This appeal and the district court's decision focus on whether the drawings at issue are properly subject to copyright protection, rather than whether they have been copied. Indeed, during the oral argument on the motion to dismiss before the district court, the court assumed that the defendants "just cut and pasted [the drawings] on to the[] website[s] for purposes of this motion." Transcript of Oral Argument on Mot. to Dismiss, Scholz Design, Inc. v. Sard Custom Homes LLC, No. 10-cv-1681, at 21 (D. Conn. Sept. 12, 2011), ECF No. 78. 7 1 the author and possess "at least some minimal degree of 2 creativity." 3 U.S. 340, 345 (1991). 4 or unusual." 5 133, 135 (2d Cir. 2004). 6 extremely low; even a slight amount will suffice. 7 majority of works make the grade quite easily, as they possess 8 some creative spark, no matter how crude, humble or obvious it 9 might be." 10 Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 The work need not be "particularly novel Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d "[T]he requisite level of creativity is The vast Feist, 499 U.S. at 345 (citation and internal quotation marks omitted). 11 The defendants' principal argument, with which the 12 district court agreed, was that the allegedly infringed drawings 13 were not entitled to copyright protection because they lacked 14 sufficient detail to allow for construction of the homes 15 depicted. 16 work, whether depicting a house, or a flower, or a donkey, or an 17 abstract design, does not depend on any degree of detail. 18 rights Scholz claims in this suit derive from the general 19 copyright law and not from the AWCPA, which has no relevance to 20 the suit. 21 A. 22 We disagree. Copyright protection of a pictorial The Copyright for Pictorial Works Scholz s copyright allegations are straightforward: It 23 created three separate original drawings (depicting homes), 24 registered them with the Copyright Office, and the defendants 8 1 without authorization made exact copies of those drawings on 2 their websites. 3 Nothing more is required for a copyright claim. The district court apparently was of the view that, 4 because the drawings were architectural, something more was 5 required for their copyright protection. 6 however, that courts accept as protected "any work which by the 7 most generous standard may arguably be said to evince 8 creativity." 9 Copyright § 2.08 (2012). It is black-letter law, 1-2 Melville B. Nimmer & David Nimmer, Nimmer on Justice Holmes explained more than a 10 century ago that "[i]t would be a dangerous undertaking for 11 persons trained only to the law to constitute themselves the 12 final judges of the worth of pictorial illustrations." 13 v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). 14 noted above, the only requirement for copyrightability of a work 15 is that it "possesses at least some minimal degree of creativity 16 . . . no matter how crude, humble or obvious it might be." 17 Feist, 499 U.S. at 345. 18 19 Bleistein As While we have not had occasion to consider a case presenting precisely the same issue as does this one,5 we have 5 Most cases examining alleged infringement deal with thornier issues than whether a work is sufficiently creative to be protected by copyright, such as whether an "inexact copy" is substantially similar enough to constitute infringement, see Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 134 (2d Cir. 2003) ("[T]he defendant may infringe on the plaintiff's work not only through literal copying of a portion of it, but also by parroting properties that are apparent 9 1 said in affirming summary judgment for the defendants based on 2 alleged copying of certain conceptual elements of an 3 architectural sketch that, although the copying of "ideas" at 4 issue there did not constitute infringement, "we do not mean to 5 suggest that, in the domain of copyrighted architectural 6 depictions, only final construction drawings can contain 7 protected expression." 8 57 (2d Cir. 1999). 9 Attia v. Soc. of N.Y. Hosp., 201 F.3d 50, We see no reason why Scholz's drawings depicting the 10 appearance of houses it had designed should be treated 11 differently from any other pictorial work for copyright purposes. 12 Andrew Wyeth and Edward Hopper were famous for their paintings of 13 houses, and Claude Monet for paintings of the Houses of 14 Parliament and of Rouen Cathedral. 15 buildings were sufficiently detailed to guide construction of the 16 buildings depicted, but that would surely not justify denying None of these depictions of only when numerous aesthetic decisions embodied in the plaintiff's work of art . . . are considered in relation to one another."), or whether elements of an allegedly infringed work that have been appropriated are facts or ideas not amenable to copyright, see Sparaco v. Lawler, Matusky, Skelly Engineers LLP, 303 F.3d 460, 467 (2d Cir. 2002) ("To the extent that the site plan sets forth the existing physical characteristics of the site . . . it sets forth facts; copyright does not bar the copying of such facts."); Attia v. Soc. of N.Y. Hosp., 201 F.3d 50, 56 (2d Cir. 1999) ("We may assume with Plaintiff that the ideas taken, or at least some of them, are powerful, dynamic ideas of immense value . . . . Under the law of copyright, however, the power of an idea does not improve the creator's right to prevent copying."). Those issues are not presented by this appeal. 10 1 them copyright protection. 2 was made by the defendant, as alleged, and as appears to be the 3 case based on the evidence submitted with the complaint, that 4 would appear to constitute infringement. 5 B. 6 If an exact copy of Scholz s drawings Copyright Registration The defendants argue that Scholz's pictorial 7 representations of the houses are not entitled to copyright 8 protection because its certificates of registration referred to 9 "architectural technical drawings" as the "nature of authorship," 10 and in the "nature of work" sections referred to "blueprints." 11 See, e.g., Certificate of Copyright at 1, J.A. 42. 12 significant, according to the defendants, because regulations 13 promulgated under the AWCPA, governing the copyright extended to 14 buildings based on copyrighted architectural plans, provide that 15 "[w]here dual copyright claims exist in technical drawings and 16 the architectural work depicted in the drawings, any claims with 17 respect to the technical drawings and architectural work must be 18 registered separately." 19 This was 37 C.F.R. § 202.11(c)(4). Scholz's registration of the subject drawings under 20 section 102(a)(5) occurred prior to passage of the AWCPA. 21 accordingly was not seeking, and did not receive, registration 22 under that later expansion of the copyright law. 23 registration of its drawings did not become invalid as the result 11 Scholz Its 1 of the subsequent passage of the AWCPA. That later expansion of 2 the copyright law is not involved in this suit. 3 C. The Architectural Works Copyright Protection Act 4 We think that the district court's ruling likely 5 stemmed from a misunderstanding regarding the relationship both 6 before and after enactment of the AWCPA between the scope of 7 protection for pictorial works such as these drawings under the 8 Copyright Act, and that afforded architectural works under the 9 Copyright Act. 10 While we think this to be a straightforward case of 11 infringement, the district court did not. The defendants 12 contended, and the district court agreed, that because the 13 drawings at issue were "architectural drawings," something more 14 was required of them for copyright protection than would be 15 required for any other "pictorial, graphic, or sculptural work" 16 under section 102(a)(5). 17 currently afforded special status under the law. 18 status is, however, irrelevant for purposes of this case because 19 Scholz is not alleging infringement under the AWCPA, but under 20 the pre-existing protection of the Copyright Act for pictorial 21 works. 22 protected under the AWCPA, depending on various factors, does not 23 deprive them of the protection they have as pictorial works 24 regardless of those factors. Indeed, architectural works are That special The fact that Scholz's drawings might or might not be 12 1 Prior to the enactment of the AWCPA, while 2 architectural structures themselves did not receive copyright 3 protection, architectural plans, blueprints, and technical 4 drawings, as well as original, creative sketches of the type at 5 issue here, were indeed covered under the Copyright Act's 6 protection of "pictorial, graphic, and sculptural works." 7 U.S.C. § 102(a)(5).6 17 8 Scholz contends that the drawings are protected under 9 section 102(a)(5), and not under section 102(8), which, as part 10 of the AWCPA, added protection for "architectural works."7 11 According to Scholz, the AWCPA is therefore inapplicable. 12 agree. 13 section 102(a)(5) has long extended to architectural plans, 14 drawings, and blueprints. 15 16 We The AWCPA did not affect the copyright protection that Historically, copyright law provided limited protection to works of architecture. 6 In or about 1990 the United States became a signatory to the Berne Convention, which required copyright protection for constructed buildings. The AWCPA fulfilled this obligation. See Leceister v. Warner Bros., 232 F.3d 1212, 1226 (9th Cir. 2000) (Fisher, J., dissenting) ("The sole purpose of legislating at this time is to place the United States unequivocally in compliance with its Berne Convention obligations." (quoting H.R. Rep. No. 101-735, at 20)). 7 As the defendants acknowledge, because the Breckinridge drawings and plans were published two years prior to the passage of the AWCPA, the home itself would not have even been subject to protection as an architectural work. 37 C.F.R. § 202.11(d)(3)(i). The record does not reflect whether the other homes were ever registered under section 102(8). 13 1 2 3 4 5 6 7 Architectural plans, while not explicitly mentioned in the Copyright Act of 1976, were covered under a provision affording protection to "pictorial, graphic, and sculptural works." But architectural structures themselves were afforded virtually no protection. 8 . . . 9 10 11 12 13 14 15 [After the AWCPA,] the holder of a copyright in an architectural plan . . . has two forms of protection, one under the provision for an "architectural work" under 17 U.S.C. § 102(a)(8), and another under the provision for a "pictorial, graphical, or sculptural work" under 17 U.S.C. § 102(a)(5). 16 T-Peg, Inc. v. VT. Timber Works, Inc., 459 F.3d 97, 109-10 (1st 17 Cir. 2006) (citations omitted); see also Oravec v. Sunny Isles 18 Luxury Ventures, L.C., 527 F.3d 1218, 1228 n.8 (11th Cir. 2008) 19 ("[T]he scope of copyright protection for architectural plans 20 registered under § 102(a)(5) was unaffected by the AWCPA."); H.R. 21 Rep. No. 101-735 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 22 6950-51. 23 models as pictorial, graphic, or sculptural works under section 24 102(a)(5) . . . is unaffected by this bill. . . . 25 intention is to keep [the copyright in the architectural work and 26 the copyright in plans and drawings] separate. 27 creating an architectural work by depicting that work in plans or 28 drawing will have two separate copyrights, one in the 29 architectural work (section 102(a)(8)), the other in the plans or 30 drawings (section 102(a)(5))."). ("Protection for architectural plans, drawings, and 14 The bill's An individual 1 Thus, prior to passage of the AWCPA courts had held 2 that use of copyrighted architectural plans to construct a 3 building would not constitute infringement, but then as now, 4 copying those plans would. 5 Espiritu, 284 F. Supp. 2d 424, 435 (S.D. W.Va. 2003) (explaining 6 that prior to the passage of the AWCPA "most courts agree[d] that 7 copying a structure depicted in plans, without copying the plans 8 themselves, [was] not copyright infringement," but that "an 9 unauthorized copy of an architectural plan infringes on a See Nat'l Med. Care, Inc. v. 10 technical drawing copyright"); see also Imperial Homes Corp. v. 11 Lamont, 458 F.2d 895, 899 (5th Cir. 1972) (copyrighted 12 architectural plans do not confer exclusive right to reproduce 13 the depicted building); Nat'l Med. Care, 284 F. Supp. 2d at 435 14 ("[A]n as-built structure or feature cannot be an infringing copy 15 of a technical drawing."). 16 case law correctly when it explained that "[t]he rule which 17 emerges from [the pre-AWCPA] cases is that one may construct a 18 house which is identical to a house depicted in copyrighted 19 architectural plans, but one may not directly copy those plans 20 and then use the infringing copy to construct the house." 21 Design, 2011 WL 2899093, at *2, 2011 U.S. Dist. LEXIS 76663, at 22 *8 (internal quotation marks and emphasis omitted). 23 commentator recently explained: The district court summarized this 15 As a Scholz 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Even though our copyright statutes were silent about architecture until 1990, it was well established that plans, blueprints and models were copyrightable writings under the 1909 Act's category of "drawings or plastic works of a scientific or technical character," and then as "pictorial, graphic, and sculptural works" under the 1976 Act. The scope of an architect's copyright protection was, however, quite limited. The unauthorized copying of plans or blueprints constituted infringement, but most authorities concluded that plans were not infringed by using them, without the architect's permission, to construct the building they depicted. Moreover, the prevailing view was that an architect's rights did not extend to the actual building derived from his or her plans. A building, as a useful article, could be protected by copyright only to the extent it had artistic features that could be identified separately from, and were capable of existing independently of, the structure's utilitarian aspects. 26 David E. Shipley, The Architectural Works Copyright Protection 27 Act at Twenty: Has Full Protection Made a Difference? 18 J. 28 Intell. Prop. L. 1, 3 (2010) (footnotes omitted); see also Daniel 29 Su, Note, Substantial Similarity and Architectural Works: 30 Filtering Out "Total Concept and Feel," 101 Nw. U. L. Rev. 1851, 31 1861, 1863 (2007) ("[A]rchitectural plans and drawings were 32 protected under the Copyright Act of 1976. 33 within the definition of 'pictorial, graphic and sculptural 34 works' . . . . 35 authoring architect the exclusive right to build the structure They fit comfortably However, copyrighted plans did not give the 16 1 depicted within the plans. . . . 2 copyright protection to physical buildings."). 3 D. 4 [T]he AWCPA extend[ed] The District Court Opinion Sketches or drawings such as those allegedly infringed 5 here, therefore, did receive protection before enactment of the 6 AWCPA, although the architectural works they depicted did not. 7 The district court seems to have misunderstood the import and 8 relevance of this distinction in concluding that under section 9 102(a)(5), architectural sketches or drawings are required to 10 include a certain level of detail to receive protection. 11 the complaint alleges unlawful copying of a pictorial work 12 registered under section 102(a)(5), there is no requirement of 13 any level of detail. 14 Where The district court relied principally on three other 15 cases in determining that the drawings at issue were not 16 copyrightable. 17 Dist. LEXIS 76663, at *9 ("Under Attia, as well as Jones, and 18 Lamont, copyright protection extends to the component images of 19 architectural designs to the extent that those images allow a 20 copier to construct the protected design." (citations omitted)). 21 First, the court looked to Attia, which examined whether the 22 defendants had infringed the plaintiff's drawings of a proposed 23 expansion of New York Hospital. 24 had submitted a plan for the hospital's modernization. See Scholz, 2011 WL 2899093, at *3, 2011 U.S. 201 F.3d at 57. 17 The plaintiff He 1 prepared a series of preliminary drawings and sketches 2 illustrating his plan, which would have expanded the hospital 3 through a new building constructed in the airspace over the FDR 4 Drive in New York City. 5 were not selected to be the architects for the plan. 6 later saw a New York Times article discussing a similar design. 7 He brought a copyright infringement suit against the architect 8 who had created that plan alleging infringement of his drawings. 9 Id. Id. at 52. The plaintiff and his firm Eli Attia The district court granted summary judgment to the 10 defendants after concluding that their design and plaintiff's 11 design could not be considered "substantially similar" as a 12 matter of law. 13 201 F.3d at 53. For purposes of that appeal, we assumed that the 14 similarities between the plaintiff's and defendants' drawings 15 were indeed attributable to copying. 16 17 18 19 20 21 22 23 24 25 26 27 28 The problem underlying Plaintiff's claim of copyright infringement, however, is that not all copying from copyrighted material is necessarily an infringement of copyright. There are elements of a copyrighted work that are not protected even against intentional copying. It is a fundamental principle of our copyright doctrine that ideas, concepts, and processes are not protected from copying. . . . A copyright thus protects not the author's ideas, but only her expression of them. Id. at 53-54. 18 1 "The problem of distinguishing an idea from its 2 expression is particularly acute when the work of 'authorship' is 3 of a functional nature, as is a plan for the accomplishment of an 4 architectural or engineering project." 5 "generalized notions of where to place functional elements, how 6 to route the flow of traffic, and what methods of construction 7 and principles of engineering to rely on" are ideas, and can be 8 appropriated by others without infringing on a copyright. 9 We determined that the alleged similarities of the allegedly Id. at 55. For example, Id. 10 protected work to the allegedly infringing work, were "concepts 11 and ideas," and "barely a first step toward the realization of a 12 plan." 13 were similar, overall, "Defendants' design has very little in 14 common with Plaintiff's." 15 Id. at 55-56. While many of the ideas and placements Id. at 57. The district court in the case before us concluded that 16 the Attia court's reference to preliminary concepts and ideas 17 meant that non-detailed drawings could not be subject to 18 copyright protection. 19 themselves were unlawfully copied. 20 certain elements of his sketches were incorporated into the 21 allegedly infringing plans, such as placement of the hospital 22 expansion above the FDR Drive. 23 plaintiff's drawings in Attia did not enjoy copyright protection. 24 Our ruling was merely that, assuming the defendant copied But Attia never alleged that his sketches Instead he contended that We in no way suggested that the 19 1 something from the plaintiff's drawings, what was copied was only 2 unprotected ideas, and not the plaintiff s protected expression 3 of those ideas. 4 court's analysis here. 5 That ruling simply does not support the district The plaintiff here does not allege, as did Attia, that 6 some "concept" or "idea" reflected in his sketches was 7 appropriated - he alleges that the entire sketch was copied. 8 Attia therefore has little relevance to the case before us. 9 does not suggest that in the domain of architectural drawings 10 protection cannot be afforded to preliminary or conceptual 11 It renderings. 12 The district court also relied on Robert R. Jones 13 Assocs. v. Nino Homes, 858 F.2d 274, 280 (6th Cir. 1988), which 14 examined under pre-AWCPA law the alleged infringement of 15 architectural plans effected by copying those plans and then 16 constructing a building based on them. 17 . . . is that one may construct a house which is identical to a 18 house depicted in copyrighted architectural plans, but one may 19 not directly copy those plans and then use the infringing copy to 20 construct the house." 21 "The rule which emerges Id. at 280. The circuit court ruled: "[O]ne may construct a house 22 which is identical to a house depicted in copyrighted 23 architectural plans, but one may not directly copy those plans 24 and then use the infringing copy to construct the house." 20 Id. 1 The district court in the case before us appears to 2 have understood Robert R. Jones to stand for the proposition that 3 there is an infringement only when a plan is (1) copied and (2) 4 used to construct a home. 5 We disagree. Robert R. Jones does not stand for the proposition that 6 no infringement can occur without construction. The last ten 7 words of the sentence quoted above (about using the infringing 8 copies to construct) were surplusage. 9 have meant was that, while the construction of the home based on What the court seems to 10 copyrighted plans is not an infringement (under the pre-AWCPA 11 law), the copying of the plans is an infringement. 12 of the drawings constituted infringement regardless of whether 13 one goes on to construct the house. The copying 14 Finally, in Lamont, upon which the district court also 15 relied, the court concluded that the copying of the floorplan of 16 a home from copyrighted drawings in a promotional brochure would 17 be an infringement. 18 19 20 21 22 23 24 25 26 [N]o copyrighted architectural plans . . . may clothe their author with the exclusive right to reproduce the dwelling pictured. However, nothing . . . prevents such a copyright from vesting the law's grant of an exclusive right to make copies of the copyrighted plans so as to instruct a wouldbe builder on how to proceed to construct the dwelling pictured. 27 458 F.2d at 898-99. In remanding the case to the district court, 28 the court of appeals explained that "[t]he exclusive right to 21 1 copy what is copyrighted belongs to the architect, even though 2 the plans give him no unique claim on any feature of the 3 structure they detail. 4 [defendants] copied the floor plan set forth in the promotional 5 booklet distributed by [the plaintiff], then this copying would 6 constitute an infringement of [the plaintiff's] copyright 7 privileges." 8 9 If it is determined . . . that the Id. at 899 (emphasis in original). The district court in the case before us inferred that infringement could only occur if the plans were sufficiently 10 detailed to allow for construction, perhaps because in Lamont the 11 "floor plan" was allegedly detailed enough to do so. 12 however, like the court in Robert S. Jones, did not indicate that 13 a less-detailed plan or drawing would not be entitled to 14 copyright protection. 15 That court, In sum, the district court concluded that architectural 16 drawings were required to contain sufficient detail to allow for 17 construction in order to receive Copyright Act protection. 18 is no such requirement, however, when the claim of copyright is 19 for a "pictorial, graphic, or sculptural work[]" under section 20 102(a)(5). 21 originality. 22 Poovey, No. 3:03CV168-H, 2004 WL 2108675, at *5, 2004 U.S. Dist. 23 LEXIS 21730, at *14 (W.D.N.C. Aug. 2, 2004) (stating that 24 "copyright protection extends to simplified floor plans, that is, There All that is required is independent creation and See John Wieland Homes & Neighborhoods, Inc. v. 22 1 promotional cut sheets, of copyrighted architectural plans," and 2 therefore concluding that the defendant was liable when a 3 draftsman he hired essentially copied the cut-sheet in preparing 4 plans for a home); see also Donald Frederick Evans and Assocs. v. 5 Cont'l Homes, Inc., 785 F.2d 897, 904-05 (11th Cir. 1986) 6 ("[C]onstruction of a substantially identical residential 7 dwelling is not prohibited by the existence of a copyright in the 8 architectural drawings for the original dwelling, but . . . if 9 the builders of the substantially identical structure copied the 10 floor plan set forth in a promotional booklet distributed by the 11 builder of the original, then this copying would constitute 12 infringement of the original builder's copyright privileges." 13 (citation and footnote omitted)); Lamont, 458 F.2d at 899 ("If it 14 is determined upon remand that the [defendants] copied the floor 15 plan set forth in the promotional booklet distributed by [the 16 plaintiffs], then this copying would constitute an infringement 17 of [the plaintiff's] copyright privileges."); Arthur Rutenburg 18 Corp. v. Parrino, 664 F. Supp. 479, 481 (M.D. Fla. 1987) (ruling 19 that the copying of a floor plan constituted copyright 20 infringement). 21 Although we have not directly addressed the question 22 with which the district court grappled here, we have twice 23 explained that architectural technical drawings might be subject 24 to copyright protection even if they are not sufficiently 23 1 detailed to allow for construction. 2 ("[W]e do not meant to suggest that, in the domain of copyrighted 3 architectural depictions, only final construction drawings can 4 contain protected expression."); Sparaco, 303 F.3d at 469 ("We do 5 not mean to imply that technical drawings cannot achieve 6 protected status unless they are sufficiently complete and 7 detailed to support actual construction."). 8 9 See Attia, 201 F.3d at 57 We see this, then, as a straightforward case of copyright infringement. The plaintiff created original drawings 10 which were properly registered with the copyright office. The 11 defendants allegedly used exact copies of those drawings without 12 permission. 13 for copyright infringement. 14 motion to dismiss these claims is therefore reversed. Nothing more is required in order to state a claim The district court's grant of a 15 III. Fair Use 16 The defendants contend that even if Scholz had a valid 17 copyright in the drawings, the defendants are not liable for 18 infringement because their usage of the images constituted fair 19 use. 20 such as criticism, comment, news reporting, teaching (including 21 multiple copies for classroom use), scholarship, or research, is 22 not an infringement of copyright." 23 factors must be considered in deciding whether a particular use 24 is "fair": "(1) the purpose and character of the use, including "[T]he fair use of a copyrighted work . . . for purposes 24 17 U.S.C. § 107. Four 1 whether such use is of a commercial nature or is for nonprofit 2 educational purposes; (2) the nature of the copyrighted work; (3) 3 the amount and substantiality of the portion used in relation to 4 the copyrighted work as a whole; and (4) the effect of the use 5 upon the potential market for or value of the copyrighted work." 6 17 U.S.C. § 107. 7 The district court declined to address this argument, 8 having concluded that in any event Scholz had not stated a valid 9 copyright infringement claim. Scholz Design, 2011 WL 2899093, at 10 *3 n.2, 2011 U.S. Dist. LEXIS 76663, at *10 n.2. "It is our 11 settled practice to allow the district court to address arguments 12 in the first instance." 13 Cir. 2009) (internal quotation marks omitted). 14 defendants may choose to raise this defense again. 15 no views as to the proper outcome of such an inquiry. Fulton v. Goord, 591 F.3d 37, 45 (2d On remand, the We intimate 16 IV. DMCA and Breach of Contract Claims 17 The district court dismissed both of these claims after 18 concluding that they required Scholz to "have a valid copyright 19 claim." 20 LEXIS 76663, at *14. 21 claim was error. 22 in unauthorized ways long after their agreements had expired. 23 This breach of contract claim did not depend on Scholz s 24 possession of a valid copyright. Scholz Design, 2011 WL 2899093, at *4, 2011 U.S. Dist. The dismissal of the breach of contract Scholz alleged that Sard used Scholz s drawings 25 We therefore vacate the 1 district court s dismissal of the breach of contract claim. 2 addition, because we vacate the district court s dismissal of the 3 copyright claim, we also vacate its dismissal of the DMCA claim. 4 Again, we suggest no views on our part as to the proper outcome 5 of such an inquiry. 6 In CONCLUSION 7 For the foregoing reasons, the judgment of the district 8 court is reversed in part, and vacated and remanded in part for 9 further proceedings. 10 Costs to Scholz against Sard and Coldwell Banker. 26
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