December 18, 2017 Articles

If You Build It, They May Sue: Floor Plans, Elevations, and Copyright Infringement

Some owners of copyrights on run-of-the-mill house plans are aggressively pursuing those who build similar homes

by Gary L. Beaver

You see them everywhere—Internet sites, open houses, Parade of Homes, and builders and designers providing copies of architectural works, floor plans, and depictions of home exteriors (sometimes called elevations) on which they have registered copyrights. Getting a copyright on house plans and elevations is absurdly easy. The only thing required is that the creator have done his or her own work, i.e., that the work was independently created by that person. There is no requirement that there be a nickel's worth of difference between some existing copyrighted plan or elevation and the plan or elevation that a builder/designer is telling the Copyright Office is entitled to copyright registration. Creativity generally is not the key to registration; originality is, and the originality in this instance is that the registrant has been the one who created the plan or design. A registrant even can have created an exact duplicate of someone else's work so long as the creation was done independently. That is not to say that everything submitted is entitled to copyright protection. Creativity in the design (which is what most non-intellectual property (IP) lawyers think of when you say "originality") may come into play in analyzing whether an infringement has occurred.

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