19 Dec Architectural copyright troll Design Basics stopped again
By Matthew Schantz, Frost Brown Todd, LLC
his fall, a federal trial court in Indianapolis decided that Design Basics, a producer of market-ready designs for single-family homes, had not presented enough evidence to even ask a jury to decide whether Jasper homebuilder Kerstiens Homes & Designs had infringed the copyright in some Design Basics plans. The court explained that, while copyright does apply to designs of single-family homes, no one can use copyright to stop others from using common design elements such as the relative positioning of rooms, putting a closet in every bedroom, and placing kitchen counters against the kitchen walls. Since the similarities Design Basics had identified between its plans and Kerstiens’ designs were that kind of common element, and there were many, many differences, the court threw out the lawsuit. Design Basics is appealing that decision.
Just over a year ago, the federal Court of Appeals over Indiana held in another lawsuit that Design Basics had not proven that the builder it had sued had actually copied protectable aspects of its designs. More of the company’s over 120 lawsuits against builders are now reaching decisions by trial courts, and the courts are carefully accepting the appellate court’s guidance to carefully compare the protectable aspects of the copyright owner’s designs with the alleged copies, ignoring features found in common use. This is bringing the legal system to a reasonable conclusion about the scope and usefulness of copyright in architectural plans.
The copyright system is designed to protect creators from others copying their work. Since there is rarely direct evidence of copying, someone can be found to be an infringer if (1) they had access to the copyrighted work, and (2) there ends up being “substantial similarity” between the two works. These cases clarify that the “substantial similarity” test should ignore the aspects of designs that are common or driven by market demand, adding that differences between the designs weigh against the conclusion that copying took place.
There are several companies that try to profit primarily from infringement lawsuits rather than business relationships, just hoping to get settlement payments or royalties priced just low enough to make an extortionate settlement more economical than being tied up in litigation of questionable copyright infringement claims. While these cases make it much more likely that a builder would win a lawsuit in the end, what can they do to minimize that risk or avoid the problem in the first place?
One thing a company can do to protect itself from copyright trolls is to avoid access by its employees to websites of known copyright trolls like Design Basics. The importance of this limitation should be communicated personally and clearly, and that communication might be backed up by filters on web access at the browser or network level. Since the copyright owners have to prove access to succeed in their infringement claims, avoiding access might defeat those claims.
Another thing a company can do is register its copyright in its own designs. While it doesn’t take much originality at all to be able to protect a design under copyright law, having your own registration certificate from the United States Copyright Office provides a bit of objective evidence that can show a court or jury that you understand how copyright works and your design is original itself.
But that copyright registration has some positive value, too. While it wouldn’t give you the right to stop others from using your window, door, or pillar designs, a copyright registration protects against people actually copying the plans and avoiding all of the work that went into creating them. One disgruntled employee can make things complicated for a business, but copyright can give the company some big sticks for enforcement.
So update your company policies and Internet filters to reduce your risk. Contact a copyright attorney who knows about architectural works to discuss registration of your original designs. And if a troll offers you a ticket on the royalty train, you’ll be ready.