Editor's Notes

The federal Copyright Act provides protection for “architectural works.” In the absence of a literal, complete copying of a copyrighted design, what is the extent of the protection? A federal appeals court recently grappled with this question, awarding the alleged infringer more than $400K in attorneys' fees and the cost of defending the suit.


The Eighth Circuit said there must be objective similarities between the copyrighted design and the allegedly infringing structure. Similarities between design elements alone will not establish infringement; the similarities must cause a reasonable person to conclude that “the total concept and feel of the designs is substantially similar.” This is a difficult standard to meet, as the court illustrated in affirming denial of an infringement claim.


The second case in this issue involved a contractor’s “design defect” defense to a project owner’s workmanship claim. The Washington State Supreme Court said that while defective plans and specifications provide an affirmative defense, it is not a complete defense. Responsibility must be apportioned. There must be a distinction between problems caused by a deficient design and problems caused by faulty workmanship.


The third case addressed the priority among subcontractor mechanic’s liens and a construction lender’s mortgage on the project property. The two subcontractors took priority over the lender based on the date each sub had started work, which were prior to the recording of the mortgage. Priority between the subs was determined by the date of lien filing. 




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