On June 5, a New York-based federal appeals courts tackled the tricky question of how to define originality in architecture, ruling against an architect who claimed two construction companies copied his designs for colonial homes.

The 2nd U.S. Circuit Court of Appeals upheld a district court’s ruling that found James Zalewski, a New York architect, did not have his copyright infringed when the companies and their contractors constructed houses based on his designs, after the licenses he sold to the companies had expired. The defendants in the case included Rensselaer, N.Y.-based Cicero Builder and Albany, N.Y.-based T.P. Builders.

The 29-page Zalewski v. Cicero Builder Dev. opinion breaks no new legal ground, but it underscores the difficulty that courts face in determining where imitation ends and originality begins in the design of buildings. It also suggests that for architects, taking creative risks can, paradoxically, offer more security—at least in terms of their intellectual property. 

The opinion by Judge Richard C. Wesley—which is worth reading in full (see exhibits here)—challenges the reasoning behind a similar case heard in the Atlanta-based 11th Circuit in 2008: Intervest Construction v. Canterbury Estate Homes. In that case, in which Intervest claimed a floor plan by developer Canterbury infringed the copyright of one of its own plans, the court denied the appeal, holding that the plans were not  “substantially similar” in their arrangement when viewed by the eye of a lay observer—the legal threshold for infringement. The 11th Circuit characterized an architectural work as an arrangement or “compilation” of standard, unprotected elements, and therefore entitled only to “thin” copyright protection.

But as Wesley points out in the Zalewski opinion, every creative work could be considered a compilation of common parts—a novel is an arrangement of words, a computer program is a set of instructions, and so forth. “Labeling architecture a compilation obscures the real issue,” Wesley writes. So what is the real issue, according to the judge? “The challenge in adjudicating copyright cases is … to determine what in it originated with the author and what did not.”

Similarities between Zalewski’s designs and the builder’s houses were the result of consumer preferences, stylistic conventions, and code requirements, not because of Zalewski’s “original expression” as a designer, Wesley argues (with a few rhetorical flourishes):

“Most of the similarities between Plaintiff’s and Defendants’ designs are features of all colonial homes, or houses generally. So long as Plaintiff was seeking to design a colonial house, he was bound to certain conventions. He cannot claim copyright in those conventions. Great artists often express themselves through the vocabulary of existing forms. Shakespeare wrote his Sonnets; Brahms composed his Hungarian Dances; and Plaintiff designed his colonial houses. Because we must preserve these forms for future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are copyrightable.”

M. Kelly Tillery, an attorney who specializes in intellectual property at Pepper Hamilton in Philadelphia, says he “wouldn’t read [the ruling] as making copyright protection in architecture any thinner than it already is.” He believes that Zalewski and his legal team didn’t adequately prove that some aspects of the designs were original to him rather than dictated by convention or codes. So even if Zalewski's designs were copied by the defendants or anyone else, it would not be “wrongful copying”—it would be a copy of a copy, essentially. And that’s perfectly legal, Tillery says.

Tillery’s advice to architects concerned about copyright protections: “If you want to put together a three-bed colonial house, put something else in it that makes it different."

In 2004, in perhaps the most high-profile copyright case related to architecture, a former Yale architecture student named Thomas Shine sued Skidmore, Owings & Merrill’s David Childs. Shine argued that as a student he had designed two towers that Childs saw as a review juror and then later copied in SOM’s designs for Freedom Tower in New York. The two parties settled before going to trial. 

Sarah Burstein, a patent and copyright expert who teaches at the University of Oklahoma College of Law, agrees that works that are more creative have an extra layer of legal protection. She notes that copyright law is based mainly on protecting the authors of books, and its application to architecture is quite new, dating only to the passage of the Architectural Works Copyright Protection Act in 1990. The Zalewski and Intervest cases offer some precedent on how to apply copyright law to the world of design, but there’s still some way to go. “I’m not so convinced that we’ve mastered this yet,” Burstein says.