What Constitutes Copyright Infringement?

by Sheldon Mak & Anderson on July 29, 2014

In order to answer that question, it must be clear what, exactly, a copyright is.

copyright symbolCopyright protects “original works of authorship” fixed in a tangible medium.  This protection is available for both published and unpublished works. Copyright protection exists from the moment a work is created in fixed form. It is automatic. No registration is required, although there are important advantages to registration.



When someone reproduces, distributes performs, publicly displays or makes a derivative work without the permission of the copyright owner, infringement has occurred. Often, there is confusion around the interpretation of what is and is not protected under US copyright law.

Consider the case of architect, James Zalewski who felt his copyrighted designs for Colonial-style homes were infringed when companies he had previously licensed his drawings to, had expired.

Court Upholds Ruling of No Copyright Infringement for Architect's Drawings

The Second Circuit Court of Appeals upheld a district court’s ruling that a New York architect did not have his copyright infringed when companies he licensed his drawings to, and their contractors, built houses based on his designs after the licenses expired.

In the 1990s, plaintiff James Zalewski was self-employed as an architect.  He granted defendants TP Builders and Cillis Builders licenses to use several of his designs for Colonial-style homes.

According to Zalewski, the defendants continued to build homes using his designs, or based on his designs, after his license to them expired and without his consent.


Zalewski sued in federal court for infringement of his copyright in his original designs.  He claims that the defendants copied “the overall size, shape, and silhouette of his designs as well as the placement of rooms, windows, doors, closets, stairs, and other architectural features.”

He also claimed that defendants violated the Digital Millennium Copyright Act (DMCA), which prohibits, among other things, "intentionally remov[ing] or alter[ing] any copyright management information."

The trial court eventually partially dismissed his complaint, and Zalewski appealed.

The Second Circuit noted that architectural works are protected under US copyright law.

The court noted that:

A fundamental rule of copyright law is that it protects only "original works of authorship," those aspects of the work that originate with the author himself. [cite]  Everything else in the work, the history it describes, the facts it mentions, and the ideas it embraces, are in the public domain free for others to draw upon. It is the peculiar expressions of that history, those facts, and those ideas that belong exclusively to their author. [cite]  Thus, any author may draw from the history of English-speaking peoples, but no one may copy from A History of the English-Speaking Peoples.  [cite]  Any artist may portray the Spanish Civil War, but no one may paint another Guernica.  [cite]  And anyone may draw a cartoon mouse, but there can be only one Mickey.  [cite]

The court stated that the central issue in the case was how to separate the “protectable from the unprotectable in architectural works.”

Some architectural designs, like that of a single-room log cabin, will consist solely of standard features arranged in standard ways; others, like the Guggenheim, will include standard features, but also present something entirely new. Architecture, in this regard, is like every art form.

The court then concluded that “even if Defendants copied Zalewski's plans, they copied only the unprotected elements of his designs.”

As the court elegantly phrased it,

Most of the similarities between Plaintiff’s and Defendants’ designs are features of all colonial homes, or houses generally. So long as Plaintiff was seeking to design a colonial house, he was bound to certain conventions. He cannot claim copyright in those conventions. Great artists often express themselves through the vocabulary of existing forms. Shakespeare wrote his Sonnets; Brahms composed his Hungarian Dances; and Plaintiff designed his colonial houses. Because we must preserve these forms for future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are copyrightable.

The lesson here is that in order to be protectable under copyright law architectural designs need to do more than simply replicate a vocabulary of architectural conventions.

If you have questions about copyright protection for architectural drawings or other designs, contact our office for a free initial consultation with one of our attorneys.

Like us on Facebook and Follow us on Twitter for the most current trademark news. At Sheldon Mak & Anderson, we recognize that innovation is your competitive edge - and it needs protection. Recognized as one of the country's "Best Law Firms" by U.S. News & World Report and Best Lawyers® –  Sheldon Mak & Anderson has been a leader in intellectual property law for more than 30 years and specializes in patents, trademarks, copyrights, trade secrets, IP litigation, international patent and trademark prosecution, licensing, alternative dispute resolution and green technology. Contact us today for a free initial consultation at (855) UR- IDEAS or (855) 874-3327.

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Sheldon Mak & Anderson Attorneys Join Leech Tishman

by Sheldon Mak & Anderson on July 28, 2014

LTFL_Logo_HR_RGBSheldon Mak & Anderson, PC is pleased to announce that six of its attorneys have joined the firm of Leech Tishman effective Wednesday, July 16, 2014.

Jeffrey Sheldon, Danton Mak and Denton Anderson have joined the firm as Partners, while Laura Lloyd, Douglas Morseburg and Katherine Bond join as Counsel. Katherine Sales will also be making the move to Leech Tishman as a Patent Agent. The other three California offices located in Riverside, Upland and Orange County will be operated by Leech Tishman.

"We are very pleased that our clients will now have a greatly expanded scope of legal services and access to a wide variety of accomplished attorneys at Leech Tishman," says Jeffrey Sheldon.

In addition to intellectual property law, Leech Tishman provides services to individuals, businesses and institutions in the areas of alternative dispute resolution, bankruptcy and creditors' rights, construction, corporate, employment, energy, environmental safety and toxic torts, estates and trusts, government relations, insurance coverage and corporate risk mitigation, international legal matters, litigation, real estate, and taxation.

You can be sure that each attorney will remain dedicated to serving your needs by providing the same powerful protection of your intellectual property assets, now with a full range of additional legal services available through Leech Tishman's offices nationwide. Currently, Leech Tishman has offices in Pittsburgh, Chicago, New York, Wilmington, DE and Pasadena, CA.

We are confident that this change will be very positive and look forward to continue providing you with award-winning intellectual property services.

For more information, please visit www.leechtishman.com or call (412) 261-1600.


Weekly Roundup July 21 to July 25, 2014

July 26, 2014

Copyrights Ninth Circuit Refuses to Stop Dish on the Basis of Aereo Sony Music Seeks to Keep Case Against In-Flight Music Provider Aloft Trade Secrets Protecting Trade Secrets Is Crucial To Your Bottom Line South Korean Chemical Firm to Pay $2 Million Penalty in Trade Secret Case Trademarks Tomato? Tomahto? Is There One Right Way […]

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Protecting Trade Secrets Is Crucial To Your Bottom Line

July 25, 2014

Managing your patents, trade secrets, know-how, copyrights and trademarks can make the difference between fortune and failure. Protecting valuable expertise as a trade secret can sometimes be a better choice than seeking patent protection. Following a trade secret protection program prevents competitors from using your information, or know-how, and allows you to own it perpetually. […]

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Ninth Circuit Refuses to Stop Dish on the Basis of Aereo

July 24, 2014

As we reported in August 2013, the Dish Network satellite service scored a victory before the Ninth Circuit Court of Appeals when the panel denied Fox Broadcasting’s appeal against various features of Dish’s service. Fox alleged that Dish was violating Fox’s copyrights in its programming. Just last week we reported on how Fox’s lawyer cited […]

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South Korean Chemical Firm to Pay $2 Million Penalty in Trade Secret Case

July 23, 2014

South Korean Company Attempts to Steal Trade Secrets from DuPont The US Department of Justice said that Toray Chemical Korea, Inc. agreed to pay the penalty and cooperate with a US government investigation of its activities. Toray also agreed to implement an improved compliance and ethics program for its company. In return, the Department of Justice […]

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