It wasn’t until 1990 that architectural plans and mock-ups were provided outright copyright protection under the U.S. 1976 Copyright Act. Prior, plans and models were protected only as graphic and sculptural works. In December 1990, Congress passed the Architectural Works Copyright Protection Act and amended the 1976 Copyright Act to include protection for “architectural works,” which is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. Structures other than buildings—bridges, tents, mobile homes, boats, dams—are not included. The work includes the overall form, as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.

Like other original works of authorship in fixed form (i.e., literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and audiovisual works; and sound recordings), architectural works are eligible for copyright protection, and the creator or owner of the architectural works copyright has the exclusive right to prepare derivative works from the original, the right to make or distribute copies and the right to publish the work. A violation of these rights enables an architectural designer, for example, to injunctive relief and to monetary damages.

Though architectural works are now protected by the Architectural Works Copyright Protection Act, a recently decided case by the United States Court of Appeals, Seventh Circuit, of architectural copyright infringement illustrates real-world challenges in administering the Act, particularly in the era of intellectual property “trolling.”

Design Basics, LLC, sued Lexington Homes, Inc., for copyright infringement, arguing that Lexington built homes that infringed four of Design Basics’ designs. The district court granted Lexington Homes summary judgment, finding no evidence that it ever had access to Design Basics’ home plans; without access, there could be no copying and no copyright infringement. The Seventh Circuit affirmed June 6, 2017, agreeing that Design Basics had no evidence of access and that no reasonable jury could find that Lexington’s accused plans bear substantial similarities to any original material in Design Basics’ plans.

The backstory of the case according to court documents reveals Design Basics was purchased in 2009 by Patrick Carmichael and Myles Sherman as an investment opportunity. Since the 2009 change in ownership, Design Basics has been party to more than 100 federal lawsuits, and nearly all involve copyright claims asserted by Design Basics. Design Basics offers employees incentives to scout out potential copyright infringement cases, paying a percentage of net recovery. Design basics filed the lawsuit against Lexington Homes after employee Carl Cuozzo discovered Lexington’s website and its alleged design infringement.

The fact that Design Basics is neck-deep in architectural copyright infringement cases was not lost on the Seventh Circuit Court and Judge David Hamilton, who wrote the opinion. The Court noted that “Design Basics’ business model of trawling the Internet for intellectual property treasures is not unique. In recent years, opportunistic holders of copyrights, patents, and other intellectual property have developed unsavory reputation for ‘trolling,’ bringing strategic infringement claims of dubious merit in the hope of arranging prompt settlements with defendants who would prefer to pay modest or nuisance settlements rather than be tied up in expensive litigation. Like the proverbial troll under the bridge, these firms try to extract rents from market participants who must choose between the cost of settlement and the costs and risks of litigation.”

Design Basics v. Lexington Homes also highlights a challenge in establishing copyright infringement in the crowded market of home design, even for trollers. To establish copyright infringement, a plaintiff must prove two elements: ownership of a valid copyright and copying of constituent elements of the work that are original. The Seventh Circuit Court noted that “opportunities for originality are tightly constrained by functional requirements, consumer demands, and the vast body of similar designs already available. In this field, the substantial similarity requirement is particularly hard to satisfy.” In this case, that may be good news for advocates of the intellectual property clause in the Constitution to “promote the Progress of Science and useful Arts.” Waiting under the proverbial bridge (which is not copyrightable, by the way) for a chance to waylay the protection of architectural works found in the Architectural Works Copyright Protection Act is certainly problematic.