The American Institute of Building Design and four other petitioners are asking the United States Supreme Court to resolve differences between Circuit Courts regarding the scope of copyright protection of architectural works. A motion filed on February 6th asks the Court to review an Eleventh Circuit Court of Appeals’ opinion and the decision of Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008).
In the Intervest case, as it is referred to in the court documents, the circuit court had carefully compared the protectable components of two house plans, focusing on the narrow arrangement and coordination of otherwise standard architectural features. It cited, for example, differences in the location of the entrances, the placement of the air conditioning units and water heaters, then agreed that these differences were sufficiently significant to preclude a finding that a copyright infringement had occurred.
The AIBD’s Board of Directors believes this decision is fundamentally contrary to the legislative history of the Architectural Works Copyright Protection Act of 1990 (AWCPA). By using the Intervest case as precedent causes the creators of original architectural works to be powerless when trying to stop the flagrant infringement of their designs. Even when persons and companies admit to copying, they can claim immunity from liability under Intervest because they have made a “few minor changes.”
AIBD, along with other petitioners, requested a review of the Intervest decision in August, 2016, and the Eleventh Circuit declined to do so. As a result, the Texas Institute of Building Design has joined with AIBD, as has three for-profit companies, Design Basics, Frank Betz Associates, and Arthur Rutenberg Homes, and together they feel the Supreme Court’s intervention is necessary to resolve this circuit split and restore a uniform interpretation of the AWCPA across the country.
Their motion points out to the Supreme Court that every Circuit Court outside of the Eleventh Circuit has rejected Intervest and declined to follow it. There is an unambiguous split regarding the scope of copyright protection of architectural works. On one hand, the Eleventh Circuit’s novel Intervest doctrine holds that architectural works are afforded dramatically less copyright protection than other types of protected subject matter, based on extremely suspect reasoning that ignored clear and contrary legislative history. On the other hand, every other circuit that has considered the issue disagrees with this view. The Second Circuit has explicitly held that Intervest is wrong and the Fourth and Fifth Circuits have declined to follow Intervest. Even one judge on the Eleventh Circuit has acknowledged that Intervest is at odds with not only other circuits but even the Eleventh Circuit’s own jurisprudence, and called for that “wrong turn” to be corrected.
According to the Eleventh Circuit’s decision in and continued reliance on the Intervest case, architectural works are composed of individual standard features and under the AWCPA individual features are not themselves protected by copyright. Therefore, architectural works are nothing but complications of unprotected elements and are not comparable to compilation works. As the court’s logic continues, because compilation works have only “thin” copyrights, all architectural works must also have “thin” copyrights as a matter of law.
By concluding this, in the Eleventh Circuit as long as there are modest differences between two similar architectural works there is no infringement. A conclusion that is unprecedented and implies that Congress somehow intended that architectural works be given less protection than other categories of protected works. Since the Intervest decision, none of the other circuits have aligned with the Eleventh Circuit and three have definitely declined to follow the ruling. In a 2014 case, the Second Circuit explicitly refused to follow Intervest holding that its reasoning of treating architectural works as complications was fundamentally flawed. Moreover, the Second Circuit found that Intervest contravened the express legislative history of the AWCPA.
The Fourth Circuit has similarly refused to follow Intervest as well. In 2012 it reversed a summary judgment that relied on Intervest. The Court ruled that because the district court failed to employ the Fourth Court’s established two-part “extrinsic / intrinsic” test of substantial similarity, “The case had to be refered for consideration under test.” Further, the fourth Circuit uses the “ordinary observer” test in determining the “intrinsic” part of the analysis, which fundamentally differs from Intervest.
The Fifth Circuit has also declined to follow Intervest in a 2014 case where defendants sought to reverse a judgment based on a jury’s finding of architectural works copyright infringement, arguing that the Court should follow Intervest to do so. District courts across the country have similarly rejected Intervest, noting that not only did its logic misunderstand the nature of a “compilation,” it also ignores the legislative history of AWCPA. The court went on to decline to follow Intervest, noting that to grant architectural works only “thin” protection would limit infringement claims to essentially only instances of verbatim copying.