US Supreme Court Urged to Close “Pirates’ Bay” of Architectural Copyright Infringement

By: Louis K. Bonham

An assortment of industry groups, building design firms, and a major regional home builder jointly urged the Supreme Court to resolve a split among the Courts of Appeals regarding architectural copyrights.

In an amici curia (“friends of the court”) filing, the American Institute of Building Design, the Texas Institute of Building Design, design firms Design Basics LLC and Frank Betz Associates, Inc., and homebuilder Arthur Rutenberg Homes, Inc. jointly urged the high court to address “a situation where the states of Alabama, Georgia, and Florida are effectively a ‘pirates’ bay’ for architectural copyright infringement, where conduct that would result in civil (or even criminal) liability in other circuits is not only tolerated but immunized.”

The case involves the continued application of Intervest Construction v. Canterbury Estate Homes, a 2008 case where the Eleventh Circuit held that architectural works enjoyed dramatically less legal protection than other types of copyrighted works.  In their brief, the amici told the Court that Intervest has been rejected by every other Circuit that has addressed it, and that one judge on the Eleventh Circuit has called Intervest a “wrong turn” that should be corrected.  They also noted that the legislative history of the Architectural Works Copyright Protection Act of 1990 (which extended copyright protection to “architectural works”) squarely contradicts Intervest — a fact that Intervest and subsequent Eleventh Circuit cases applying it have ignored.

Intervest is an incredibly bad decision,” said Louis K. Bonham of Osha Liang, who represents two of the amici.  “As many other courts have observed, its reasoning ignores basic principles of copyright law, and contravenes Congress’ express intent,” he added.

The case is Home Design Services, Inc. v. Turner Heritage Homes, Inc.. et al., No. 16-858.

To view the full brief, click here.