Architecture and Morality

Interesting case from last year I just happened upon:

Landrau v. Solis Betancourt, --- F.Supp.2d ----, 2007 WL 5173642 (D. Puerto Rico)

In every issue, Architectural Digest profiles several design projects, heavily illustrated. “Each article credits its author, the photographer whose images illustrate it, and the architect and/or interior designer of the featured property.” Paul Sherrill, a partner at the architecture and design firm bearing the name of Solis-Betancourt, wrote to AD describing the firm’s work at the Puerto Rico home of two of the defendants, Ramirez-de-Arellano and Del Valle. Sherrill stated that the firm had developed the architecture and interiors.

AD picked the house and sent Sherrill its standard Design Credit Information form and an Authorization for Publication letter for the homeowners. Solis-Betancourt completed the forms, stating that it was the designer and architect, and that Sherrill should also be credited. The authorization from the homeowners specifically stated they were authorized to allow the magazine to publish photos of the house. When AD’s photographer took more pictures, AD asked Solis-Betancourt to complete fact and credit sheets for each photo indicating the authorship and source of the artwork and furniture shown. The article ultimately included 9 photos, 7 of them interior shots. It didn’t include the architectural plans or discuss the architectural design in great detail. It credited Solis-Betancourt as the architect and interior designer.

Landrau then wrote to AD claiming that her firm, Garcia & Landrau, was the actual architect. Solis-Betancourt responded that Garcia & Landrau had been contracted to expedite working drawings in order to obtain building permits, but “only after he and the client had firmly developed a program, design, and aesthetic direction for the project.” He stated that Garcia & Landrau had been hired for technical skills, and was not consulted on aesthetics and design. Thus, AD declined to print a retraction.

The court refused to dismiss the Lanham Act claims against Solis-Betancourt. The first argument was standing: Solis-Betancourt claimed there was no direct competition between architecture and interior design. But precedent doesn’t require direct competition, only a reasonable interest in being protected against false advertising. (The court didn’t distinguish between claims under §43(a)(1)(A) and (a)(1)(B), which is par for the course in false attribution claims.) In any event, the allegation that Solis-Betancourt holds himself out as an architect would be sufficient to establish competition.

The court relied on Smith v. Montoro, 648 F.2d 602 (9th Cir.1981) (“[I]t is clear that appellant, as one in the business of providing his talents for use in the creation of an entertainment product, is uniquely situated to complain of injury resulting from a film distributor’s misidentification of appellant’s contribution to the product.”). (Side note: public.resource.org has a lot of court cases, which is making linking easier!) The interesting thing about that is that Smith can’t possibly survive Dastar, and the opinion doesn’t discuss Dastar. On the other hand, the instant case may be the kind of reverse passing off case that does survive Dastar, if the physical origin of the architecture is misattributed. But is this case really about physical origin?

For similar reasons, the court rejected Solis-Betancourt’s argument that plaintiffs hadn’t shown any protectable interest or secondary meaning in their work, and thus there could be no likely confusion. The old Smith rule is that improper credit is a false designation of origin, full stop. The only relevant consumer confusion is confusion about who’s responsible; consumers don’t need to care or recognize either of the parties’ names as having trademark meaning. Thus, it was sufficient for plaintiffs to allege that they actually created the architectural design; that Solis-Betancourt falsely designated the design’s origin (this is what makes it sound like a Dastar-barred claim, because it’s the physical embodiment of the design that the AD article covered; on the other hand, as we’ll see, there’s no allegation of copying here); that the designation confused consumers who would then seek out Solis-Betancourt instead of plaintiffs; and that plaintiffs therefore suffered harm.

The copyright claims against Solis-Betancourt, however, failed. Plaintiffs made an obviously frivolous Visual Artists Rights Act (VARA) claim; the Architectural Works Copyright Protection Act (AWCPA) allows photos of a building; and in any event there was no allegation that Solis-Betancourt took any pictures or copied the plans or the design. But what the court referred to as “state law copyright claims” were not preempted. This is entirely mysterious—of course state law copyright claims are preempted. What it seems to have meant is that state law moral rights claims aren’t preempted to the extent they cover subject matter that isn’t covered by VARA. Once again, Dastar throws that reasoning into question, given that the Dastar Court reasoned that allowing a reverse passing off claim for attribution would conflict with the Copyright Act.

AD was more successful in fending off plaintiffs’ claims. Solis-Betancourt is the one who (allegedly) engaged in reverse passing off. AD relied on his representations, but didn’t advertise the project as its own. There was therefore no infringing conduct, not even a possibility of contributory infringement, because AD lacked any knowledge of the infringement. The court rejected plaintiffs’ claim that AD had a duty to investigate who was the architect on the project.

The Copyright Act claims also failed because the AWCPA, as noted above, specifically allows photos of architectural works taken if the building is located in or visible from a public place, and there was no allegations that the building was not in a public place.