AWCPA Case Heading to the U.S. Supreme Court

By: Louis Bonham

Over twenty five years ago, the U.S. Congress passed the Architectural Works Copyright Protection Act (the “AWCPA”), which extended copyright protection to building designs (“architectural works”).  The AWCPA was passed to bring U.S. law into compliance with its treaty obligations under the Berne Convention, which the United States joined in 1988.  (The Berne Convention requires member states to provide copyright protections for a certain categories of copyrightable subject matter, including architectural works.  Prior to the AWCPA, US copyright law did not cover architectural works.)

Since that time, courts have interpreted the AWCPA to extend the same panoply of protections to architectural works that had been afforded other categories of protected works.  As a result, in most quarters the practice of “borrowing” a competitor’s successful architectural designs (which had been a widespread practice prior to 1990) has been substantially curtailed, largely due to the severe legal consequences that can befall architectural copyright infringers.

However, in a 2008 decision (Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008), the Eleventh Circuit departed from this law, and effectively abrogated the AWCPA in the states of Alabama, Georgia, and Florida by finding that architectural works were deserving of substantially less legal protection that other categories of copyrightable subject matter.  The Intervest decision has been widely criticized by other courts across the country, including at least three other Circuits which have refused to follow it.  Such other courts have noted that the reasoning of Intervest is flatly contradicted by the legislative history of the AWCPA and many other settled principles of copyright law — none of which were even addressed in Intervest.  Commentators have also observed that Intervest similarly ignored this country’s treaty obligations under the Berne Convention and TRIPS, both of which require US law to protect copyrights in architectural works.

A recent case attempted to get the Eleventh Circuit to reconsider its Intervest precedent.  In Home Design Services v. Turner Heritage Homes, 825 F.3d 1314 (11th Cir. 2016), the Court held that Intervest controlled and thus required a directed verdict for the defendants.  However, in a concurrence by Judge Rosenbaum, she wrote that while Intervest controlled the outcome of the case, she noted the severe criticism that decision had received from other courts, and opined that Intervest was a “wrong turn” that the Eleventh Circuit should revisit.  Unfortunately, the Eleventh Circuit denied a petition to rehear the Home Design case en banc, which would have been the vehicle for reconsidering Intervest.

The plaintiffs in Home Design are now seeking to have the Supreme Court review this issue, pointing out not only the Circuit split on this issue but also that Intervest is contrary to this country’s obligations under international intellectual property treaties.  Hopefully, the Supreme Court will take up this case and restore the rights of architectural copyright owners in the Eleventh Circuit.