Copyright in architectural works: confusion piled on (lack of) confusion

Groff Construction, Inc. v. American Pride Building Co., 2007 WL 495316 (M.D. Fla.)

Plaintiff sought the dismissal of defendants’ copyright counterclaims/third party claims. Defendants (who include a builder) own a model home. Plaintiff (also a builder) sold defendants the model home, never told them it was covered by a copyright, and didn’t object to them using the model home as a model. Plaintiff is now claiming copyright infringement by defendants based on a 1996 registration for the house plans. Plaintiff advertises its business using photos of defendants’ model home, without defendants’ permission and without acknowledging defendants’ ownership. Defendants counterclaimed for, among other things, false designation of origin and false advertising.

Groff argued that the counterclaims failed to state a cause of action because, as the copyright owner, it has exclusive rights in the work, which include the rights to display the work and create derivative works. The defendants replied that ownership of a copyright is distinct from ownership of the physical object in which the copy is embodied, which is true but irrelevant. As the court pointed out, architectural plans don’t create any exclusive rights in the physical home, and it also noted that a copyright owner can’t prevent other people from taking pictures of an architectural work in a public place (also, by the way, irrelevant, because the copyrighted work here is the plans, not the architectural work, which if copyrighted would allow the owner to prevent construction of a substantially similar house). Because Groff’s copyright didn’t give it the exclusive right to take pictures, the court denied his motion to dismiss.

The copyright claim isn’t why the counterclaims should fail. The counterclaims should fail, on the facts as described, because it’s not false advertising or false designation of origin to advertise your construction business with pictures of a house you built, regardless of who owns the physical house now. The representation a picture makes in such a context has nothing to do with ownership and everything to do with construction. Indeed, were defendants to advertise their own construction business with these same photos, they’d be engaged in reverse passing off.