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March 29, 2016

Our client entered into an agreement to design a multi-million dollar luxury house. The design process took over two years and designs were made for several different sites. Finally, husband and wife decided upon a site but after construction began terminated my client. The design agreement had a provision that the plans could be purchased for a certain percentage of the estimated cost of construction. The homeowners didn’t want to pay for the design so they retained another architect who “supposedly” created an entirely independent design. The new architect allegedly created this independent design in just two months.

My client obtained a copy of the “new” plans and there was no doubt they were not independently created. This particular client has built a business based upon one of a kind designs and is committed to protecting the company’s design work. There was no good reason for the client being terminated except interference from outside sources. My client was not about to let two years of work be taken and not recover for the many hours of work involved in creating a truly unique luxury house that incorporated the stunning creativity of his design team.

Architectural plans have copyright protection. If there is infringement by unauthorized copying a lawsuit can be instituted in Federal court to recover damages. The damages recoverable are the reasonable value of the plans, the profit that would have been made if the builder had built the house and depending on when infringement occurs attorneys fees and costs. I filed a lawsuit to recover all of these damages.

Since I’ve had experience with this type of matter before (not only filing suit but going all the way through trial and judgement) I knew the best way to proceed was to have the two sets of plans compared. I had this done not only by my client’s chief in house architect but also by an independent architect retained as an expert witness. Both architects concluded that the infringing plans were almost an exact duplicate of my client’s plans. Room sizes were the same, as were room locations, niches, wall thickness and other interior details. Our expert concluded this could only have occurred if there were tracing, scanning or use of computer disk. The exterior design was modified slightly but not to any great extent.

Once we filed suit the homeowners countered with eighteen affirmative defenses, a counterclaim and a third party complaint. In addition they tried to bury us with discovery requests. Since most records are now kept on computer there are issues that arise concerning how computer records are maintained and what information is within a record kept by computer. ESI issues(electronically stored information) are the new hot topic in litigation. I had to overcome a twenty-seven page letter from my opponents addressing what were alleged as discovery response deficiencies. I learned a great deal about ESI but overcame their objections.

Once my opponents realized my client was not going to cave in and that I knew what I was doing in an architectural copyright infringement lawsuit (my opponents were the Intellectual Property practice group of a large law firm) they requested that a mediation/settlement conference be held. My client and I set certain parameters that the homeowners had to consent to before agreeing that we would participate in settlement discussions. The parameters concerned a certain dollar amount the homeowners had to be willing to offer in settlement before we would lower our settlement demand.

Before participating in the mediation/settlement conference I submitted a detailed “Pre-Settlement Conference Letter” setting forth my client’s position and the strengths of our case. I emphasized the substantial similarity of the infringing plans to my clients drawings and that the test to determine copyright infringement of architectural drawings is the ordinary observer test. “Two works are substantially similar if the ordinary observer, unless he sets out to detect the disparities would be disposed to overlook them and regard their aesthetic appeal as the same.” In Federal Court settlement conferences are usually conducted not by the trial judge but a magistrate judge. Fortunately we were before a magistrate who was experienced, took the matter seriously and reviewed all of the material before we got to court. My client explained in detail the similarities in the plans and how certain unique things his company does in their drawings were copied in the infringing plans. It didn’t take the magistrate long to see through the homeowners defenses and conclude they were weak at best. One of these defenses was that the homeowners contributed so many ideas for the design that they were co-authors of the plans. This contention was not only refuted by a provision in the design agreement but also not supported by case law. “This is because the drawing is not created until it is fixed in copy and the ideas and sketches contributed by the homeowner do not sufficiently constitute fixed expressions of ideas(that is, copyrightable work) to make the buyer a co-creator.”

Before beginning the settlement conference my client told me the bottom line number he would take in settlement. We never had to consider that number because a significantly higher amount was negotiated and obtained. I think the reason this came about was because I had put together a very sound case that was supported factually and in the law. Also of great importance was the other side realized my client was steadfast in his conviction that his company’s unique design work was not going to be taken and he was going to protect the foundation upon which he built his company’s reputation. If that meant going all the way through trial then so be it. Fortunately a very good settlement was obtained and the inconvenience, time and expense a trial takes was avoided.

Architectural copyright infringement cases are intricate and somewhat complex. However, I know how to prepare a case like this and for me as a lawyer they are challenging and present issues where my lawyering skills can be used. This type of case doesn’t come along too often but when it does I am well equipped to handle the matter and welcome the opportunity.