Whose home is it? House designs avoid copyright infringement.

February 13, 2018
Patterson Thuente IP

If you thought the most competitive designers around are found on reality shows, think again. A recent case decided by the Seventh Circuit Court of Appeals illustrates that the claws can come out in the world of affordable home design, too. And, as the plaintiff learned, copyright law provides only limited protection.

Home away from home

The plaintiffs (collectively referred to as Design Basics by the court) claim copyrights for more than 2,700 home designs. They sued Lexington Homes, Inc., alleging the company had infringed four of those designs and built about 50 homes based on them.

The district court dismissed the case before trial. Design Basics appealed.

Crowded house

To prevail on a claim of copyright infringement, a plaintiff must prove, among other things, that the defendant copied original elements of the copyrighted work. This requires a showing of “substantial similarity.” To assess similarity, courts consider whether the allegedly infringing work is so similar to the copyrighted work that a reasonable person would believe that the defendant had unlawfully copied the plaintiff’s protected design “by taking material of substance and value.”

As the appellate court noted, the substantial similarity requirement is particularly hard to satisfy in the field of home design. Opportunities for originality are tightly constrained by functional requirements (which aren’t subject to copyright protection), consumer demands and the many similar designs already on the market. A designer’s or architect’s copyright, therefore, is “thin,” meaning only very close copying of protected elements can constitute infringement.

The court stressed that the focus is on protectable expression; similarity alone — even close similarity — isn’t enough. After all, the public domain is crowded with countless ideas, themes, images and designs available to everyone. As result, two works could be strikingly similar, even identical, not because one is copied from the other but because they’re both copies of design in the public domain.

The appellate court cited the scène à faire doctrine, which often helps distinguish protected expression from unprotected public domain material. The doctrine holds that the elements of a work that are indispensable, or at least standard, aren’t protected. For example, designers get no credit, the court said, for putting a closet in every bedroom.

Home sweet home?

The Seventh Circuit ultimately rejected Design Basics’ infringement claim. It found that Lexington’s plans were like Design Basics’ plans only because they both resembled common home designs. Because there are only so many ways to arrange bedrooms, kitchens, attached garages and shared areas, not all parts of architectural floor plans merit copyright protection.

Moreover, the court observed, Design Basics advertises thousands of home plans on its website. It might be that every blueprint for a single-family home anywhere in the country would match one of its designs using the loose standard of similarity Design Basics asked the court to use. An infringement doctrine that would allow an aggressive designer to sue every competitor “would turn the law of copyright on its head” and “chill the market.”

Design Basics’ claim was further undercut by the fact that, on close examination, the dueling plans turned out to have many aesthetic distinctions. An expert witness highlighted the dozens of differences between the two designers’ plans in dimensions and spatial relationships, roofing configurations, building materials, carpentry and decor. The many differences, the court said, weren’t trivial.

Proving there’s no place like home

Although the court in this case repeatedly emphasized the difficulty of meeting the substantial similarity requirement when it comes to home designs, it stopped short of holding that the task is impossible. In fact, it explicitly acknowledged that it’s possible to design a one-of-a-kind work-of-art home. The designs at issue, though, didn’t meet this standard. 

Design Basics, LLC v. Lexington Homes, Inc., No. 16-3817, June 6, 2017, 7th Cir.



The court in the Design Basics, LLC v. Lexington Homes, Inc. case (see main article) found that the plaintiffs’ copyright infringement claim didn’t fail just because of the lack of substantial similarity between architectural plans. It also failed because the plaintiff didn’t show that the defendant had a reasonable possibility of access to the plans at issue.

The court dismissed the plaintiffs’ circumstantial evidence that the defendant may have been aware of some of its plans. This evidence included an employee’s declaration that the firm disseminated its plans to home builders associations, including one in which the defendant was a member. But the plaintiffs’ records showed it had last shipped plans to the association 18 years before the defendant joined.

The plaintiffs alternatively argued that the mere existence of its website with the plans posted established a reasonable possibility of access. The court declined to draw a “bright line” as to the quantity or quality of additional evidence required but specifically stated that the existence of the copyrighted materials on the Internet couldn’t, by itself, justify an inference that the defendants had accessed them.

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