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Trump Trumps Architectural Infringement Claim

By Senior Copyright Counsel, Google Inc.

The motion picture industry has long suffered from frivolous lawsuits brought by unsuccessful writers certain that they have been wronged. Such claims are also common in the music field, bu are less common in architecture. One exception is an opinion handed down yesterday by the Eleventh Circuit, Oravec v. Sunny Isles Luxury Ventures. L.C., et al. available here. (H.T. to C.E. Petit). The court of appeals, per Judge Wilson, affirmed the trial judge?s grant of summary judgment to defendants, and appropriately so. The opinion is solid.

Plaintiff is a Czech born architect who, upon immigrating to the United States, eventually ceased practicing in the field, perhaps because he is not licensed to do so. In his spare time, he sketched a design for a high-rise building that featured the use of alternating concave and convex shapes, with elevator cores sticking out from the building?s roofline. He mailed out about 120 copies of his design, and stated he had given some in person presentations. He subsequently alleged that the Trump Palace and Trump Royale high-rise condos in Sunny Isles, Florida infringed his designs.

The trial court held there were disputed issues of fact about defendant?s access to plaintiff?s design, resting summary judgment on the ground that no reasonable jury properly instructed could find the two works were substantially similar in expression. The court of appeals helpful included copies of the parties? designs in appendices to its opinion, so that readers may form their own opinion of the matter.

There are at least noteworthy legal points in Jude Wilson's opinion: (1) rejection of the Ninth Circuit?s extrinsic-intrinsic test; and (2) a proper construction of the scope of copyright in architectural plans. There is also a lengthy discussion of plaintiff?s repeated, hapless efforts to register his claims, that is worth reviewing for those who practice in the field, or who worry about the scope of registrations for derivative works.

On the first point, the court of appeals revisited the opinion in Herzog v. Castle Rock Entertainment, 193 F.3d 1241 (11th Cir. 1999)(per curiam). Herzog has always been an anomaly because the circuit per curiam adopted the district court?s opinion and did not write its own. I have seen many references to Herzog that gloss over this point. The point is important because the Herzog district court utilized the Ninth Circuit?s extrinsic-intrinsic test, announced in the 1977 Krofft opinion, and which has been transmogrified in the subsequent 31 years into a jurisprudence that is, at its best, unfathomable and bears no resemblance to basic principles of copyright law. Praise God that the Eleventh Circuit took the occasion in Oravec (pages 10-11 n.5 of the slip opinion) to hold? ?We believe that the Herzog formulation is not useful in this case because the two tests ultimately merge into a single inquiry: whether a reasonable jury could find the competing designs substantially similar at the level of protected expression.? If only the Ninth Circuit could find its way to such a simple statement of the inquiry.

The other legal point worth noting (in the short space of a blog, that is) concerns the court of appeals' clear holding that registration of architectural plans or for other pictorial, graphic, and sculptural works "does not protect against the construction of a building based on copyrighted architectural plans; it only prohibits copying of the plans themselves." (page 20). This simple, but important principle is a result of the 1990 amendments protecting for the first time architectural works, and is followed rarely, regrettably. May this be the start of a correction.

Full post as published by The Patry Copyright Blog on May 15, 2008 (boomark / email).