Second Circuit Clarifies Copyright Protection for Architectural Works and Drawings

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Until 1990, federal law extended copyright protection to original architectural drawings, but generally did not extend such protection to actual buildings, even buildings constructed from protected drawings.  The drawings were protected from copying as “pictorial” or “graphic” works, just like any sketch or painting.  The drawings only had to have a minimal degree of originality to enjoy protection.

Except for purely ornamental features separable from the structure, buildings did not enjoy the same protection.   Buildings were considered functional works excluded from protection under the Copyright Act.  In 1990, Congress passed the Architectural Works Copyright Protection Act of 1990 (“AWCPA”), amending the Copyright Act to fill that gap.  The AWCPA explicitly extended copyright protection to “architectural works,” so as to include completed buildings themselves registered with the Copyright Office.

Last week, the Second Circuit Court of Appeals clarified that the pre-existing protection of architectural drawings as “pictorial” works survived enactment of AWCPA.  In Scholz Design, Inc. v. Sard Custom Homes, LLC, Docket No. 11-3298 (2d Cir. August 15, 2012), the court considered a design firm’s claim for infringement of front elevation drawings showing the appearance of the front of three houses, surrounded by lawn, bushes and trees.  There was no dispute the defendants had published exact copies of the drawings.  The lower court had held, however, that these drawings were not protected under the Copyright Act, as amended by AWCPA.  The court interpreted previous decisions as holding that architectural drawings only could be protected if they contained sufficient detail from which a building could be constructed.  That interpretation sought to reconcile the extension of copyright protection to architectural works, through AWCPA, with the long-established principle that copyright law does not protect ideas, only the particular expression of ideas.

The Second Circuit disagreed.  The court held that regardless of whether the drawings were protectable as “architectural works” under AWCPA, they remained protectable as “pictorial” works under pre-existing law. 

Scholz Design confirmed that AWCPA’s extension of copyright protection to buildings did not result in a contraction of protection for the underlying drawings.  Thus, according to the Second Circuit, the unauthorized publication or reproduction of original architectural drawings, even where lacking in detail needed for actual construction, has been and remains unlawful.