Architecture Copyrights Clarified by 2nd Circuit

MANHATTAN (CN) - Just as Shakespeare could not copyright iambic pentameter, an architect can't claim clapboard siding on colonial houses as his intellectual property, the 2nd Circuit ruled.

"Shakespeare wrote his sonnets; Brahms composed his Hungarian dances; and plaintiff designed his colonial houses," the 29-page opinion states. "Because we must preserve these forms for future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are copyrightable."

Four years ago, architect James Zalewski and his firm Draftics Ltd. claimed in a federal complaint that construction companies T.P. Builders and Cillis Builders infringed upon home designs that he licensed to them.

Those designs, and variations of them, propagated as the construction companies passed them on to various other contractors after the licenses expired, Zalewski said.

In the first three lawsuits that he filed, Zalewski cast a wide net to nearly 90 defendants, including builders, engineers, architects, real estate agents and owners of allegedly infringing homes, court documents say.

U.S. District Judge Gary Sharpe in Albany closed all three cases, and sanctioned Zelewski for attorneys' fees, in 2012.

Affirming the dismissals Thursday, the 2nd Circuit's opinion asks: "What aspects of Zalewski's designs are protectable?"

"A fundamental rule of copyright law is that it protects only 'original works of authorship,' those aspects of the work that originate with the author himself," Judge Richard Wesley wrote for a three-member panel. "Everything else in the work, the history it describes, the facts it mentions, and the ideas it embraces, are in the public domain free for others to draw upon. It is the peculiar expressions of that history, those facts, and those ideas that belong exclusively to their author. ... Thus, any author may draw from the history of English-speaking peoples, but no one may copy from 'A History of the English-Speaking Peoples.' Any artist may portray the Spanish Civil War, but no one may paint another Guernica. And anyone may draw a cartoon mouse, but there can be only one Mickey."

The similarities Zalewski spied between his designs and the defendants' "are features of all colonial homes, or houses generally," Wesley added.

"So long as plaintiff was seeking to design a colonial house, he was bound to certain conventions," he wrote. "He cannot claim copyright in those conventions. Great artists often express themselves through the vocabulary of existing forms."

Although Zalewski's decision to target so many people in his lawsuit may have been "ill-advised," Wesley wrote that the federal court must show that the litigation was "objectively unreasonable" before slapping him with attorney's fees.

Daniel Doherty, a lawyer representing Cillis Builders with the Albany-based firm DeGraff, Foy & Kunz LLP, said he was "pleased" with the ruling.

"As we argued in the District Court, there are only so many general variations which can be made to a colonial home," Doherty said. "We are pleased with the Second Circuit's decision and holding that our client Cillis Builders took absolutely nothing from the plaintiff's design."

Autondria Minor, a partner at Schmeiser, Olsen & Watts who represents T.P. Builders and its owner, said only that she was "thankful."

Zalewski's lawyer did not return to a request for comment.

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