IP in brief: Intervest Construction v. Canterbury Estate Homes When it comes to copyright infringement of architectural works, courts must often choose between substantial similarity and substantial dissimilarity. So fell the responsibility on the Eleventh Circuit Court of Appeals in this case. Intervest, a construction company, holds the copyright registration for a floor plan called the Westminster, created in 1992. Intervest sued Canterbury, a housing developer, alleging that Canterbury’s Kensington plan, created in 2002, infringed the Westminster copyright. After the district court granted summary judgment in Canterbury’s favor, Intervest appealed, arguing that the court erred in focusing on dissimilarities between the plans. Under the Copyright Act, a copyrightable “architectural work” includes “the overall form as well as the arrangement and composition of spaces and elements in the design” but not individual standard features. According to the Eleventh Circuit, while such features aren’t copyrightable, an architect’s original arrangement of them may be. The court explained that the definition of an “architectural work” thereby closely parallels the definition of a “compilation” under the act (defined as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated or arranged in such a way that the resulting work as a whole constitutes an original work of authorship”) and noted that the “copyright protection in a compilation is ‘thin.’” The court held that, as with compilations, any comparison of the works at issue must be accomplished at the level of protected expression — in other words, “the arrangement and coordination of those common elements” such as rooms, windows and doors. And, when making the comparison, a court should recall that the copyright protection is “thin.” Here, the district court had carefully compared the protectable components of the two plans, focusing on the narrow arrangement and coordination of otherwise standard architectural features. It cited, for example, differences in the location of the entrances and the placement of the air conditioning units and water heaters. The Eleventh Circuit agreed that the differences in these and other aspects were sufficiently significant to preclude a finding that the plans were substantially similar. The case provides a helpful reminder that copyrighted works carry different levels of protection. If the protection is deemed “thin,” the copyright holder may find it difficult to establish infringement. • |