Tuesday, August 27, 2013

Copyright Law - Fourth Circuit: No Discerning Observer For Architectural Copyrights?

Architectural Works Copyrights, Copyright Infringement, Substantial Similarity

Charles W. Ross Builder, Inc. v. Olsen Fine Home Building, 2012 WL 5447871 (Fourth Circuit November 8, 2012).  Couple wishes to build new home.  Visit model and get brochures.  Builder sends renderings unsolicited.   Months later builder’s representative visits couple’s house under construction and sees plans.  Builder sues couple and couple’s builder and architect for copyright infringement.   District court awards summary judgment based on lack of substantial similarity based on the Second Circuit’s “discerning observer” test.   Fourth Circuit vacates and remands.   Applies “intrinsic/extrinsic” test for substantial similarity.  Extrinsic test is an objective inquiry that scrutinizes external criteria of substantial criteria in both ideas and expression.  Intrinsic test is a subjective inquiry as to whether an ordinary observer in the intended audience would be disposed to overlook them and to regard the aesthetic appeal as the same.
 Purchase Copyright Litigation Handbook 2012-2013 by Raymond J. Dowd from West here  

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