Seventh Circuit: Addition to Architectural Plans Not Original, But Submission of Reconstructed Computer Plans Sufficient for Copyright Filing

In Nova Design Build Inc. v. Grace Hotels, LLC, 2011 WL 3084929 (7th Cir. July 26, 2011), the Seventh Circuit considered a case where an architectural design firm registered a copyright in improvements made to a Holiday Inn Express project. The builder got in a dispute with the architectural designer. The builder proceeded to use the plans, and claimed that the contract permitted the use. On summary judgment, the district court ruled for the defendant builder and against the plaintiff designer.

First, the court applied the T.B. Harms v Eliscu test to determine subject matter jurisdiction. Since the complaint alleged copyright infringement, the court had subject matter jurisdiction. The builder's allegation that the use was permitted by contact (licensed) was a defense - and defenses do not affect jurisdiction under 28 USC 1331 or 1338.

Second, the court overruled the district court's finding that Nova's reconstruction of its computerized designs to support its copyright filing relied on Nova's memory and thus was invalid. Nova's computers had been stolen, so the precise files were unavailable. In overruling, the Seventh Circuit found that Nova's reconstruction was based on hard copies and a meticulous recreation of the plan and that on summary judgment the district court's adverse ruling was not appropriate.

On this point, Nova is correct. Indeed, before the digital world made exact copies common, many copies may have had tiny discrepancies in them. There is no hard evidence in the record supporting the district court's speculation that Nova had to resort to the memories of its employees to re-create its designs. And even if there were, Nova has pointed to evidence to the contrary. With the hard copies and the restored CAD files, Nova could meticulously and mechanically piece together a copy of its original designs.


Practice Tip: This is a quote that copyright practitioners will want to keep in their back pockets.

Third, the Seventh Circuit found that Nova's additions to the Holiday Inn Express plans were not original and thus Nova could not satisfy a key element of copyright infringement.

We think that Nova fails at the initial step: it has not identified anything in these particular designs that was original and thus protectable. Nova's designs were, for the most part, based on the Holiday Inn Express prototype. Nova does not assert that it has the right, either through contract or otherwise, to enforce Holiday Inn Express's copyright in its own plans. Instead, Nova protests that it added features to the prototype, such as an extra floor, a larger meeting area, different closet and door placements in the rooms, and different pool, exercise, and laundry areas, but that is not enough. Though Nova's designs do possess added features (and these additions are the only elements that may be protectable), they are devoid of originality. Merely adding an extra floor, identical to the floor layout of the prototype, is not original. The other features Nova mentions were specifically requested by Grace, mostly through written requests accompanied by graphic designs. In light of that, there was no creative element to these features in Nova's designs. See Tiseo Architects, Inc., 495 F.3d at 347 (holding that architectural sketches that incorporated owner's suggestions and drawings, and were limited by zoning requirements, did not possess requisite originality for copyright protection). The aspects of Nova's designs that went beyond the Holiday Inn Express prototype were insufficiently original to qualify for copyright protection, and with that Nova's claim for copyright infringement must fail.


The Seventh Circuit thus affirmed the District Court's grant of summary judgment against the plaintiff designer.

A short, but important case illustrating how the Seventh Circuit is looking at copyright claims, copyright filings, and demonstrations of originality on a summary judgment motion.


Nova Design Build Inc v Grace Hotels

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Copyright and Originality: Malevich and the American Legacy at Gagosian

Kazimir Malevich - Mystic Suprematism 1920-27

Arthur Danto wrote of  Kazimir Malevich's Black Square:  "We marvel at its originality, not its painterly brilliance."   A great video on the Gagosian website with curator Andrea Crane introducing the work of Malevich and its influence on American artists such as Richard Serra is found here.

The show at Gagosian called "Malevich and the American Legacy" is wonderful, I was fortunate to have a guided tour.   Andrea Crane quotes (I paraphrase) MoMA founder Alfred Barr as saying "Each generation needs recreate its own Black Square."

Copyright does not protect simple geometric shapes like squares.   That does not stop the art world from finding freshness, originality and tremendous value in works such as Black Square.   Which should give us all time to pause and reflect on the meaning of ownership, of originality, and of inspirational conversations had among past, present and future artists.   

Images from the show here.   The show closes April 30, 2011.

More on Suprematism here.

Some cases discussing copyright law's originality requirement here and here.   The US Supreme Court required originality and rejected the "sweat of the brow" doctrine in Feist v. Rural, a case involving litigation over telephone books.

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Oprah Winfrey Wins Copyright Battle Over Chubbiest US President

In Harris v. Winfrey, 2011 WL 1003807 (E.D.P.A. March 18, 2011), a federal district judge dismissed a claim against Oprah Winfrey but denied sanctions under Rule 11 of the Federal Rules of Civil Procedure.   Copy of motion for sanctions here.  The allegation was that Oprah took materials from a book "How America Elects Her Presidents" (I could not find this book on Amazon).   Plaintiff mailed copies of his book to Oprah, trying to get on her show.   A review of the transcript showed that the only question on Oprah's show that had any similarity to the book was a question of who was the heaviest president.  Answer:  William Howard Taft.   From the decision:

Copyright law protects only an author's original expression; historical facts and information in the public domain are not copyrightable. Id. at 547-48 (“[N]o author may copyright facts or ideas.”); see also Video Pipeline, Inc. v. Buena Vista Home Entm't, Inc., 342 F.3d 191, 199 n. 5 (3d Cir.2003) ( “[C]opyright protection does not include facts and ideas, but only their expression.”). There is “thin” copyright protection for an author's choices as to the presentation of factual matter. Feist, 499 U.S. at 348. This protection, however, is limited to the author's original, creative contributions, since copyright “protects only the elements that owe their origin to the compiler-the selection, coordination, and arrangement of facts.” Id. at 359. In Feist, for example, the Supreme Court refused to extend copyright protection to a utility company's aggregation of telephone directory information, holding that neither the “raw data” nor the manner in which it was presented qualified as original. Id. at 361.



The material plaintiffs seek to protect here is not original. Plaintiffs argue that Winfrey infringed Harris's copyright in his booklet by referring to an historical fact, President Taft's weight. (Compl.¶ 21.) Winfrey's use of this fact, even if she learned it from Harris's booklet, does not infringe any copyright Harris may have held. This information is not original to Harris, but rather is a piece of “raw data” that preexisted Harris's booklet and is available from numerous external sources.


Plaintiffs also argue that Oprah infringed the manner in which the facts were presented by copying verbatim the way in which Harris “framed the questions.” (Pls.' Resp. to Defs.' to Mot. Dismiss 5.) While the two versions of Harris's booklet presented to the Court do have some hallmarks of originality, neither contains any material in question format. Thus, the framing to which plaintiffs refer, even if copyrightable, is not implicated in this case.


State law claims of unjust enrichment, conversion and tortious interference were dismissed as preempted.    More on Rule 11 sanctions here.  More on preemption here.

Chubbiest US President - William Howard Taft - Public domain image courtesy Wikimedia Commons

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Seventh Circuit: No Moral Rights In Flower Gardens Under VARA

In Chapman Kelly v. Chicago Park District, 2011 WL 501161 (7th Cir. Feb 15, 2011), the Seventh Circuit rejected a claim of moral rights in a public garden in Chicago.

What is a painting?  What is a sculpture?   What is original and what is fixation?   All interesting questions tackled by the Seventh Circuit in determining whether an artist had moral rights in a garden under the Visual Artists Rights Act.

From the decision (linked below)

Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed. Most of what we see and experience in a garden—the colors, shapes, textures,and scents of the plants—originates in nature, not in the mind of the gardener. At any given moment in time, a garden owes most of its form and appearance to natural forces, though the gardener who plants and tends it obviously assists. All this is true of Wildflower Works, even though it was designed and planted by an artist.

Of course, a human “author”—whether an artist, a professional landscape designer, or an amateur backyard gardener—determines the initial arrangement of the plants in a garden. This is not the kind of authorship required for copyright. To the extent that seeds or seedlings can be considered a “medium of expression,” they originate in nature, and natural forces—not the intellect of the gardener—determine their form, growth, and appearance. Moreover, a garden is simply too changeable to satisfy the primary purpose of fixation; its appearance is too inherently variable to supply a baseline for determining questions of copyright creation and infringement. If a garden can qualify as a “work of authorship” sufficiently “embodied in a copy,” at what point has fixation occurred? When the garden is newly planted? When its first blossoms appear? When it is in full bloom? How—and at what point in time—is a court to determine whether infringing copying has occurred?

Chapman Kelly v Chicago Park District


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