One month ago we put out a call for Emerging Professionals who wanted to join our blogging team. We received quite a few responses and have begun the process to include new voices into our AIA CO EP Blog. As we discussed the future of the blog, we looked to voices that would shed light on diverse issues and questions about architecture and the profession, as well as varying personal backgrounds and differing experience within the professional environment. Over the next few weeks you will see new names introduced below. As we finalize our new team, we will provide them with their own usernames and work them into the regular schedule. We hope to create consistency and regularity in voices, but will also be supplementing those voices with guest bloggers.
Our first new blogger is Casey A. Quillen. Casey Quillen is a founding member of Ruebel & Quillen, LLC. For more than a decade, she has represented Colorado design professionals as defense counsel for errors and omissions claims litigation, coverage counsel, corporate counsel, and as a business advisor. Casey is a professional affiliate member of the AIA. Her first article looks at the protected and unprotected elements within architectural design. Personally, I have rarely studied or read about copyright law within the realm of architecture – or any copyright law for that matter. Casey brings in interesting perspective as someone who represents architects. She breaks down the idea of copyright law and what can or cannot be protected under copyright law.
Constricting the Bounds of Originality – Separating the Protectable from the Unprotected in Architectural Works
Casey A. Quillen
RUEBEL & QUILLEN, LLC
Some architectural designs, like that of a single-room log cabin, will consist solely of standard features arranged in standard ways; others, like the Guggenheim, will include standard features, but also present something entirely new. Architecture, in this regard, is like every art form.
Zalewski v. Cicero Builder Dev., Inc., 2014 WL 2521388 (2d Cir. June 5, 2014). Architectural design within well-recognized scènes-à-faire such as neoclassical government buildings, colonial houses, and modern high-rise office buildings may be more difficult to protect under federal copyright law due to the conventional restrictions of the form according to the United States Court of Appeals, Second Circuit.
In Zalewski v. Cicero Builder Dev., Inc., self-employed architect James Zalewski granted defendant builders licenses to use several colonial home designs he had created. According to plaintiff Zalewski, after the license expired the builders retained another design firm to customize the home designs which the builders continued marketing without consent. The architect asserted that the defendants had copied the overall size, shape, and silhouette of his designs as well as the placement of rooms, windows, doors, closets, stairs, and other architectural features. On appeal, the United States Court of Appeals for the 2nd Circuit considered the trial court’s ruling on summary judgment to determine whether those elements copied from Zalewski’s original design were protectable under copyright law. Ultimately, the Second Circuit determined that builders copied only the unprotected elements of Zalewski’s design. The Court compared the conventions of designing a colonial-style home to the use of iambic pentameter or folk motifs in literary works:
[T]he designs’ shared footprint and general layout are in keeping with the colonial style. There are only so many ways to arrange four bedrooms upstairs and a kitchen, dining room, living room, and study downstairs. Beyond these similarities, Plaintiff’s and Defendants’ layouts are different in many ways. The exact placement and sizes of doors, closets, and countertops often differ as do the arrangements of rooms.
Id. The Court also noted certain design features used by all architects because of consumer demand or market expectations should not receive protection.
Federal Copyright protection for architectural works is relatively new having been formally added to the list of protectable material in 1990. We should not be surprised to see Colorado State and Federal Courts apply similar reasoning when issues of architectural copyright arise. A design professional facing copyright infringement would do well to head the admonition by the Second Circuit and strive to “distinguish those aspects of his designs that were original to him from those dictated by the form in which he worked”, so that he may prevail on his claims.
 Zalewski also asserted a cause of action under the Digital Millenium Copyright Act (“DMCA”) which prohibits intentionally removing or altering any copyright management information. 17 U.S.C. §1202(b)