Courthouse Reporter Series: Two Recent Cases Address Copyright Protection for Architectural Works

Recent decisions by the Seventh Circuit and the Eight Circuit have addressed the scope of protection afforded to architectural works under copyright law. The Seventh Circuit case of Design Basics, LLC v. Signature Constr., Inc., 994 F.3d 879 (7th Cir. 2021), took a somewhat narrow view of the copyright protection afforded to the design of an “affordable, multipurpose, suburban, single-family home.” In Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 9 F.4th 803 (8th Cir. 2021), cert. denied, 142 S. Ct. 2888, 213 L. Ed. 2d 1103 (2022) the Eight Circuit held that the publication of floor plans of a house in a real estate listing was not protected from claims of copyright infringement.

Design Basics, LLC v. Signature Constr., Inc., involved a plaintiff that the court described as holding registered copyrights in thousands of floor plans for suburban, single-family homes that are basic schematic designs, largely conceptual in nature, and depict layouts for one- and two-story single-family homes that include the typical rooms: a kitchen, a dining area, a great room, a few bedrooms, bathrooms, a laundry area, a garage, stairs, assorted closets, etc. The court described the plaintiff as a “copyright troll” and noted that litigation proceeds had become the principal revenue stream for the plaintiff. The plaintiff sued a contractor and related businesses contending hat the defendants had infringed plaintiff’s copyrighted floor plans.

The court in its analysis stated that Congress amended the Copyright Act in 1990 to provide for copyright protection for architectural works. Architectural works are defined under the Act as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design but does not include individual standard features.” 

The Design Basics, court noted that to establish copyright infringement, two elements must be proven: (1) ownership of a valid copyright; and (2) copying of the constituent elements of the work that are original. The first element in that case was not disputed.

In addressing the copying of the constituent elements of the work that are original, the court looked to two questions: (1) whether the defendant copied the plaintiff’s protected work; and (2) whether the copying went so far as to constitute improper appropriation.

To answer the first question, the court held that plaintiff must show that the defendant copied the work. This is generally established through circumstantial evidence that the defendant had access to the plaintiff’s work and that there is enough similarity between the plaintiff’s work and the defendant’s work to support a reasonable inference of copying. 

The second question (whether the copying went so far as to constitute improper appropriation) required substantial similarities between the defendant’s work and the protected elements in the plaintiff’s work.

The court noted that “standard features” or scènes à faire are elements that are commonplace, standard, or so unavoidable that they do not distinguish one work from another, and that such elements are not entitled to copyright protection. The court held that “standard features” or scènes à faire in house plans include the arrangement of the rooms: the kitchen is always close to the dining room; the bedrooms will usually be clumped together and near a bathroom; the door from the garage into the house usually leads to the kitchen rather than the great room or living room.  

The court also held that the “merger doctrine” prevents the use of copyright to protect ideas or procedures. If an idea can only be expressed in a few ways, then it would be possible to copyright every one of its expressions. In such a case, under the “merger doctrine,” the expression of that idea cannot receive copyright protection.

The court went on to hold that the plaintiff, by copyrighting 2800 floor plans for affordable, multipurpose, suburban, single-family homes was attempting to occupy the entire field. As a result, the court found that the copyright protection for its plans was “thin,” and that any proof of unlawful appropriation would require more than substantial similarity, but would require “virtually identical” plans.  

In Designworks Homes, Inc. v. Columbia House of Brokers Realty, Inc., 9 F.4th 803 (8th Cir. 2021), cert. denied, 142 S. Ct. 2888, 213 L. Ed. 2d 1103 (2022), a homebuilder that was the owner of a copyright in a home design filed suit for copyright infringement against two real estate companies. The real estate companies had been engaged by the owners of two of the houses constructed by the plaintiff to assist the owners in selling their homes. During the process of listing the homes for sale, the real estate companies, either directly or through a contractor, produced sketches of the homes’ floorplans and incorporated images of those floorplans in the listings for potential buyers to consider.

At issue was an exception to the copyright protection afforded architectural works which provides that the copyright protection for an architectural work that has been constructed does not prevent another party from making, distributing, or displaying pictures, paintings, photographs, or other pictorial representations of the work if the building in which the work is embodied is located in or ordinarily visible from a public place.

The Eighth Circuit held that the floor plans did not constitute a permissible pictorial representation of the architectural works, because floorplans should not be considered “pictures.” The court noted that the copyright statutes as a whole reveals that Congress knew how to describe floorplans with more specificity than by simply referring to them as “pictures,” and that the floor plans should be characterized as “technical drawings” or “architectural plans,” rather than as “pictures.”

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Author and Editor Stu Richeson is an attorney in the litigation section of Phelps Dunbar’s New Orleans office, primarily focusing on commercial litigation with an emphasis on construction matters, intellectual property issues and insurance.

Courthouse Reporter Series: The Bizarre Case That Required a 117-Year-Old Expert

A recent decision by the Georgia Court of Appeals, Munro v. Georgia Department of Transportation, highlights how overly specific and inflexible rules of evidence can create peculiar results.   

Munro involved a dispute over the design of a Georgia intersection. No. A23A0404, 2023 WL 4194716 (Ga. Ct. App. June 27, 2023). The plaintiff alleged that the defendant improperly designed the intersection, never corrected that improper design, and failed to properly maintain the intersection. These claims were dismissed for a very odd reason: the plaintiff’s expert witness wasn’t old enough.

The case arose from a car accident. A vehicle in which the plaintiff Munro was a passenger collided with a tractor trailer crossing an intersection. Munro sued the Georgia Department of Transportation (DOT) for negligently designing, maintaining, and inspecting the intersection. The DOT filed a motion to dismiss for lack of subject matter jurisdiction on the ground of sovereign immunity and a motion to exclude the testimony of the Munros’ expert witness, among other motions. The trial court dismissed the case in full on the sovereign immunity ground and denied the other motions as moot. The Munros appealed.

The Georgia Court of Appeals reviewed the trial court’s ruling on sovereign immunity de novo. It also ruled on DOT’s motion to exclude the Munros’ expert witness, notwithstanding the trial court’s decision not to address that motion. In so doing, the Court of Appeals erected substantial hurdles to successfully stating a claim against the DOT.

The Munros’ claims had to fit within a statutory exception to sovereign immunity. In Georgia, the DOT has statutory immunity for losses resulting from “design for construction of or improvement to . . . public works where such . . . design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation.” OCGA § 50-21-24(10). So, to state a viable claim against the DOT, the Munros had prove that the design of the intersection was not in substantial compliance with design standards in effect at the time of preparation.

The Munros had to find a qualified expert to opine on these topics. This is where things became interesting. Per Georgia’s Evidence Code, an expert witness whose testimony is to be used in a professional malpractice suit must have been licensed at the time of the alleged act or omission. OCGA § 24-7-702(c)(1). The Munros’ expert’s testimony was deemed inadmissible to support the claim of negligent design because the expert was not licensed at the time of design and installation of the intersection. The expert witness was first licensed in 1969. However, because the intersection was designed even earlier, the Court of Appeals found that the expert witness’s 54 years of experience were insufficient to qualify him to testify.

The Munros also attempted to prove that the DOT failed to improve the intersection. This claim, too, was foreclosed to them by virtue of the Munros’ 80-year-old expert’s relative “youth.” Because this claim likewise required a showing that the original design was negligent—and the Munros did not have an expert who was licensed long enough to be qualified to testify to this effect—their failure-to-improve claim also failed.

To its credit, the Court recognized that its application of the Evidence Code “effectively destroys an entire class of claims for the negligent design of roads, as many roads in Georgia were designed long before any potential living expert witness had been licensed.” Despite this arguably absurd result, the Court deferred to the intent of the Georgia legislature as evinced by the text of the statute.

The Munros ultimately utilized a different exception to sovereign immunity to successfully assert a negligent inspection claim. Georgia statutorily waives immunity for losses resulting from inadequate or negligent inspection of state property. O.C.G.A. § 50-21-24(8). The DOT did not claim immunity, but instead tried to argue that the negligent inspection claim was so intertwined with the negligent design claim as to warrant dismissal. Here, the Court sided with the Munros, noting that the DOT’s duty to keep the intersection free from visual obstructions (e.g., overgrown bushes), was distinct from any design responsibilities. The Munros, therefore, were able to return to the trial court with their negligent inspection claim intact.

This decision was not appealed further, which might mitigate the attention Munro draws to Official Code of Georgia Section 50-21-24(10). Still, it will be interesting to track whether the decision, and the immortal-expert requirement that the legislature and the court may have inadvertently created between them, prompts an attempt to amend the Evidence Code. As things currently stand, assuming one can find an 85-year-old engineer willing to testify as an expert witness, such engineer likely wasn’t licensed before age 25, meaning any claims requiring proof that a design done before approximately 1963 is negligent are foreclosed by the Code. The intersection at issue in Munro was designed in 1931, meaning the Munros would have had to find an expert at least 117 years old to be qualified to testify. This case is a paradigmatic example of enacting a statute with insufficient thought as to the bizarre results it could produce.

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Author Todd Heffner is an associate in Troutman Pepper's construction practice group. Todd has devoted his career to serving clients in the construction industry, particularly high-stakes federal court litigation and arbitration.

Author Di'Vennci Lucas was a 2023 summer associate in Troutman Pepper's Atlanta office.

Editor Jane Fox Lehman is a Senior Attorney at The Babcock & Wilcox Company.

Consultant Corner: Drones and Artificial Intelligence for Building Inspection in Construction Law

Drones are becoming increasingly popular for conducting building inspections, as they provide a quick and efficient way to assess the condition of a building and identify any defects or issues. However, in order to extract the maximum value out of autonomous building inspections, drones must be combined with computer vision and data visualization.

Figure 1: Aerial Perspective of Drone Inspection Survey

Drone technology allows significantly more area to be inspected in a fraction of the time. Additional technologies such as LIDAR and infrared cameras and AI analysis can help supplement visual inspection information. AI analysis can be particularly useful to alert inspection professionals or their clients where there are red-flag conditions that need to be addressed immediately. 

The combination of reality capture and AI analytics software is now used throughout the architectural, engineering and construction space. This technology is being put to use for construction progress inspection, regulatory compliance, historic preservation, risk management and for general repair and maintenance purposes.

Capturing and Visualizing Large Datasets

While drones may be an attractive solution, anyone who uses them must remember not only the need for an accompanying analytics solution, but also data visualization. The hundreds or thousands of images captured by a drone can be processed through a technology called photogrammetry to deliver a 3D model depicting the as-built condition through a simple 3D visualization, minimizing the need to review thousands of photos. 

Owners are realizing that owning their inspection data can be beneficial. Owners can leverage this inspection data to extract insights about adjustments to R&M plans, to increase efficiencies. For example, it might be more efficient to focus maintenance activities more regularly in a specific area on-demand when deterioration is identified rather than on a periodic basis across a whole building.

Figure 2: Data Visualization and Photogrammetry Tools Together (t2d2.ai)

Inspection data is also valuable when it comes to claims. Performing a complete 100% building envelope inspection can allow for much faster insurance claims processing if the state of a property is documented before a severe weather event. This is also useful when documenting existing conditions prior to adjacent construction. Essentially, this “date stamp” digital-twin of a property’s condition can prove useful in many scenarios, either when there are legal implications or when any building stakeholder has a need to refer back to any point on a building at that time. 

Case Studies

In one example, a cooperative 40-story concrete residential tower was able to use drones and AI to perform a cost-benefit analysis weighing their annual “patch-and-repair” program against a more comprehensive building envelope capital project. Drones provided a comprehensive building assessment that would have taken the engineering firm weeks to complete. 

In another example, a large cathedral used drones to monitor exterior conditions on an ongoing basis after completing a significant repair project to minimize deferred maintenance by making sure that conditions do not deteriorate beyond a certain point. 

In a third case, a building that recently completed construction used a drone analysis to “date stamp” the building and repeatedly monitor against the baseline to investigate and warranty claims that need to be made prior to the warranty period expiring.

Conclusion

Together, all of these technologies are making AEC professionals, building owners and other property stakeholders better equipped to maintain state-of-good-repair, process claims and take the guesswork out of past conditions.

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Author Jonathan Ehrlich is the Chief Executive Officer of T2D2, the artificial intelligence asset inspection software platform. T2D2 is used by engineers, architects and building owners to make their inspection workflow faster, cheaper and more accurate. 

Editor Thanh Do is an Associate in the Forensics practice at Thornton Tomasetti, Inc. As a structural engineer, structural failure analyst and investigator, Dr. Thanh Do examines building and infrastructure inadequacies and determines the root cause of the alleged failures. He specializes in design and construction defect evaluations, collapse investigations, Design-Build project delivery, and standard of care assessment.

Toolbox Talk Series Recap – Using a Measured Mile Analysis to Compare Productivity on a Construction Project

In the October 26, 2023 edition of Division 1’s Toolbox Talk Series, Andrew Vicknair and David Ponte gave an informative presentation on measuring productivity loss on construction projects. Specifically, they covered the factors that lead to productivity loss, the various options available to calculate productivity loss, and when a measured mile approach can be used. 

As covered by Vicknair’s slides from the presentation, factors leading to productivity loss on construction projects include:

• Schedule Compression
• Multiple contractors working in same space
• Defective Design
• Change Orders
• Out of Sequence Work
• Changes in crew size
• Poor workmanship
• Excessive overtime
• FM events
• Scheduling issues
• Weather – not enough to stop work, but enough to slow progress

When a construction project incurs any of the above impacts, a claim for production loss needs support from a quantitative analysis. Ponte described how a measured mile analysis, if possible, is the “gold standard.” A measured mile analysis is a comparison of production in an unimpacted period to the productivity in an impacted period. The primary requirement for a measured mile approach is the existence of an unimpacted period of time to establish a baseline productivity for the given construction project. Ponte explained how there is typically a learning curve in the initial work performed, regardless of how typical the work is or how experienced the workers. In the initial days, weeks, or even months of a project, productivity increases until it reaches a plateau. The unimpacted period needs to be sufficiently large to get beyond the learning curve and reach the plateau in order to be representative.

In addition to the duration of the unimpacted period, a measured mile analysis also requires adequate documentation to establish productivity. Vicknair and Ponte highlighted records showing labor hours in specific areas with specific quantities as a prerequisite to allow the analyst to determine how much time was spent and how much production was achieved in each area for each day.

In Ponte’s experience, a measured mile analysis is not possible the majority of the time. Smaller subcontractors and general contractors often do not keep sufficient records and might not realize they have been impacted until it is too late. In these cases, alternatives included a Total Cost approach or a Modified Total Cost approach. In a Total Cost approach, which courts frown upon, the claimant compares the total cost of the work performed to the estimated cost of the same. A Modified Total Cost approach has the same starting point as a Total Cost approach, but makes adjustments for underbidding, other bid corrections, change orders, and other factors impacting productivity. For either approach, courts generally require, among other things, that a party establish that a measured mile could not be used, that the estimated cost (often the bid) was reasonable, and that the costs incurred were reasonable.

Thank you to Vicknair and Ponte for the valuable information on measuring productivity loss. 

Click here to view the discussion in its entirety.  

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Author Douglas J. Mackin is a construction attorney with Cozen O’Connor in Boston, Massachusetts. Douglas counsels owners, developers, contractors, and subcontractors in all phases of a construction project, from contract negotiation through to completion, including disputes, litigation and arbitration. Douglas can be contacted at dmackin@cozen.com.