The 11th Circuit's new copyright standard for architectural works.

• Author: Milbrath, Stephen D.
• Position: Business Law

The 11th Circuit decided only a few copyright cases in 2008, but two of them, Oravec v. Sunny Isles Luxury Ventures, L.C., 527 F.3d 1218 (11th Cir. 2008), and Intervest Constr., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008), (1) are particularly worthy of note for the copyright practitioner. Both cases arise from Florida district court proceedings, each contributing to the developing law concerning the protection of architectural works, each applying an especial rigor to the issue of substantial similarity, and each suggesting that the 11th Circuit has adopted a new posture toward summary judgment on the issue of noninfringement--one far less favorable to the plaintiff than the standard traditionally employed in such cases.

Oravec and Intervest both concern the extent of protection for works of architecture. In 1990, Congress created a new category of copyrightable subject matter: "architectural works," a term defined by 17 U.S.C. [section] 102(a)(8). (2) Before this amendment was adopted, the Copyright Act provided little protection to the creator of expressive architectural structures, leaving the creator with no remedy for even direct copying of original designs unless the copier could be shown to have actually copied the creator's copyrighted drawings. Such drawings were protectable as "pictorial, graphic, and sculptural works" under 17 U.S.C. [section] 102(a)(5). But after the law changed, an architect or other designer could seek protection of architectural designs in two ways: through registration of the creator's drawings in the usual way as "pictorial, graphic, and sculptural works," sometimes (and hereafter) called PGS for short, or through registration of the building designs, in the form of three-dimensional models, for example, as an "architectural work," under the new [section] 102(a)(8), or by pursuing both forms of registration.

The new "architectural work" path to protection enables the creator to claim protection for the "design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings" and encompasses the "overall form as well as the arrangement and composition of spaces and elements in the design, but does not include standard features." (3)

As the 11th Circuit makes clear in Oravec, however, choosing between the two modes of protection, even in light of the new statutory protection, can still be a case-dispositive decision. A PGS copyright "does not protect against the construction of a building based on copyrighted architectural plans; it only prohibits copying of the plans themselves." (4) Hence if the creator's attorney chooses to pursue registration under only one of the available options, electing not to pursue the other, the client might later be without an effective remedy.

Oravec and the Trump Buildings

Mr. Oravec, a designer for architectural firms, developed a series of designs for a high-rise building, featuring the use of alternating concave and convex segments, with elevator cores "protruding through the building's roofline." (5) These designs were the subject of Mr. Oravec's first series of copyrights, all registered as architectural works under 17 U.S.C. [section] 102(a)(8). Mr. Oravec widely promoted these designs in South Florida among developers and designers, but met with no success. He later applied for another architectural work copyright for a group of three-dimensional models and photographs based on his earlier designs, claiming that the models and photographs were derived from his earlier works. The copyright office took exception to his application, however, suggesting somewhat ambiguously that Oravec's application should have been cast as a PGS work if he had created only "original sculptures, artwork, and photographs that were based on previously registered architectural work claims." (6) In response, Oravec refiled his application as a PGS application, abandoning his...