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You Can't Copy What You Can't See. Why "Access" Is So Important In Copyright Infringement Cases

Authored by attorney Sean Golden

The U.S. Copyright Act gives the creator of an architectural work (i.e., the copyrighted design of a building) the exclusive right to make copies or reproductions of that design.  Anyone who makes unauthorized copies can be sued for copyright infringement.

As a practical matter, direct evidence of copyright infringement can be hard to come by.  Rarely is there an eyewitness to the physical act of copying, or video surveillance footage catching the infringer in the act, or a confession by the copier.  Even when there is a not “direct” evidence, an architect can still prove that its copyright has been infringed by proving in court that (1) the infringer had access to the copyrighted architectural work, and (2) the protected design and the allegedly infringing design are substantially similar.  “Access” means that the alleged infringer had the opportunity to view or to copy the protected architectural work (usually the plans or drawings). 

Indeed, the vast majority of copyright infringement litigation focuses on access and substantial similarity.  The substantial similarity determination is inherently subjective, though, and courts across the country have struggled with how to define similarity between two architectural designs.

For this reason, the first element – access – often becomes the most crucial element in a copyright infringement case.  Whether an infringer had access to a copyrighted work is typically a straightforward question.  As a general rule, if a lawsuit can be decided on an uncontroversial issue, judges will decide the case on that issue.  Because courts have such a difficult time with the nebulous question of whether two architectural works are substantially similar, many copyright infringement cases turn on the less difficult question of whether the alleged copier had access to the copyrighted drawings.  For example, if there is no evidence that the alleged copier ever had access to the copyrighted architectural work, the infringement case will be dismissed, without any need to determine whether the two designs are substantially similar.

Builders, contractors, and design professionals who want to avoid litigation should be extra careful about receiving or reviewing architectural drawings prepared by others.  This situation can arise in various ways, such as a client handing over a set of drawings and saying “this is what I want,” or when a contractor or architect is asked to complete an unfinished design prepared by a prior architect.  In situations such as these, if appropriate, it may be best to refuse to view those plans altogether.  Disputes may arise as to whether two designs are too similar, but copyright litigation can be prevented or stopped if it can be shown that the alleged infringer never had the opportunity to view or copy the design. 

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