Architect vs. Architect:
Nobody Likes a Copycat
Architect vs. Architect: Nobody Likes a Copycat
ConstructionRisk.Com Report is a monthly newsletter written by J. Kent Holland, an attorney whose 25-year legal practice specializes in construction and environmental law.
New York architect Peter F. Gaito filed suit recently against Simone Development Corp. and the architect hired to replace him after his contract was terminated by Simone following a fee dispute. The suit alleged copyright infringement against the second architect, claiming he “re-designed” the project by copying the essence of Gaito’s original design as well as a number of specific design features. Ultimately, however, the motion was dismissed in court.
The federal district trial court granted a 12(b)(6) motion to dismiss the action, making a determination that the two designs were not substantially similar and that the original copyrighted design was not infringed. On appeal, it was held that the district court acted properly in considering the question of noninfringement as a matter of law on a motion to dismiss instead of allowing the question to go to a jury as a question of fact. The complaint, together with the architectural drawings attached as an exhibit to the complaint, provided sufficient information for the district court to evaluate the allegations on the face of the complaint and reach the determination that the complaint did not adequately allege substantial similarity between the second architect’s work and that of the original architect.
The Specifics of the Suit
In Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57 (3rd Cir. 2010), the plaintiff architect, Peter F. Gaito, teamed with a development company to jointly submit a proposal to the City of New Rochelle, NY for a project. The architect drafted plans that included the design contents, concepts, zoning information and statistics regarding the proposal to make to the city. The proposal consisted of plans for a residential high-rise tower, retail space at the base of the tower, a new pedestrian plaza, a public park, and an above-ground parking garage. The city awarded the project to this team, and the architect then proceeded to prepare additional schematics and registered its designs with the U.S. Copyright Office. A couple months later, the architect and the developer got into a fee dispute. Due to the fee dispute, the developer terminated its agreement with the architect and retained the services of a different architect (“defendant” or “second architect”).
The first architect filed suit against the developer and the second architect alleging that the “re-design” for the project was based largely on the plaintiff architect’s designs. Thirty-five similarities between the designs were alleged. According to the court: “They include similarities as to location (such as the placement of a new park, parking garage, public plaza, “plaza connection,” “elevator stair entry tower,” and “public landscaped open space”); similarities as to certain features and functions (such as the inclusion of a new parking garage, a “landscaped street level plaza,” “on site parking for both residential and retail use,” a water feature, public art, active retail space at the base of a residential tower, boutique shops with “the flexibility for a potential single larger tenant,” “architecture that was light, airy, transparent, made of glass with hints of traditional materials,” a tower with a “slender profile,” balconies for the residential units, a parking garage with a pre-cast masonry facade, as well as certain similarities with respect to the orientation of the project); and similarities as to parameters (such as a floor-area-ratio of 5.5, a parking garage with 850 parking spaces, retail space of 44,000 square feet, and professional office space of 2,500 square feet). Id. ¶¶ 131-204.
Understanding the Court’s Decision
Affirming the district court decision that there was no substantial similarity in the designs, the appellate court explained that: “With respect to that question, the district court compared the various features and design elements of the “predominant” high-rise building in each design, and concluded that “[t]he overall visual impressions of the two designs are entirely different,” and that “[n]o reasonable juror would be disposed to … regard their aesthetic appeal as the same.” Id. at 9 (internal quotation marks omitted).
The appellate court acknowledges that the test for infringement of a copyright is vague, and that the “determination of the extent of similarity that will constitute a substantial, and hence infringing, similarity presents one of the most difficult questions in copyright law, and one that is the least susceptible of helpful generalizations.” But the court states that the question of substantial similarity is not exclusively reserved for resolution by jury, and that a trial court can resolve that question as a matter of law, and that indeed, “Where, as here, the works in question are attached to a plaintiff’s complaint, it is entirely appropriate for the district court to consider the similarity between those works in connection with a motion to dismiss, because the court has before it all that is necessary in order to make such an evaluation. If, in making that evaluation, the district court determines that the two works are “not substantially similar as a matter of law,” [citation omitted] the district court can properly conclude that the plaintiff’s complaint, together with the works incorporated therein, do not “plausibly give rise to an entitlement to relief.”
Having found that the district court was entitled to determine the question of copyright infringement as a matter of law, the appellate court turned to the question of whether the decision by the judge should be sustained on a de novo review of the case. In this regard, the court states: “The standard test for substantial similarity between two items is whether an ‘ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.’ ” [citation omitted] In applying the so-called “ordinary observer test,” we ask whether “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”
The Final Conclusion
After explaining key differences in the design details between the two designs in question, the court concluded that most critically, “it is patent that the overall visual impressions of the two designs are entirely different,” and that “after carefully considering the various alleged similarities between plaintiff’s design and defendants’ redesign, it is clear ‘that no more was taken than ideas and concepts.’” Accordingly, the judgment of the district court was affirmed.