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Can a builder be guilty of copyright infringement?

Copyright protection exists for many kinds of work. We usually think of them in connection with literary or musical works, motion pictures, or sound recordings.

Did you know that copyrights can also protect architectural works? If the new home you are building too closely mimics the award-winning model home in the next subdivision, you could be liable for copyright infringement.

Protecting original designs

Congress passed the Architectural Works Copyright Protection Act in 1990. This protects original architectural designs in any form, including drawings, plans and the buildings erected. Architects, building owners and builders can be liable for infringement if their buildings too closely resemble those designed and copyrighted by someone else, even if they did not copy the original plans.

How the courts decide

The court may use one of two tests to determine whether an architectural work is "substantially similar" to the copyrighted one. The first is the "total look and feel" test whereby "ordinary observers" compare the two works. If the observers find that there are minor changes that do not alter the total look and feel of the original, the court may find the defendant guilty of copyright infringement. In the second test, the court filters out unoriginal portions of the architectural work before examining the protectable portions to see whether the two works are substantially similar. Changing out standard features, such as windows or doors, is not enough to prevail against a copyright infringement claim.

Copyright infringement penalties

In a court proceeding, the copyright owner only has to establish that the individual suspected of infringement had access to the copyrighted architectural work and that the new work is substantially similar to the original. While it is true that many people involved in copyright infringement, either intentionally or by accident, never face charges, those who do also face severe penalties. If the home you are building fares badly in the court's tests and you receive a conviction of willful infringement, statutory damages allow for recovery of up to $150,000 as well as possible prison time.

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