Remedies in Architecture Cases

I know I am "building" up posts on architecture, but I came across an opinion that is so wacky it shouldn't go without comment; and, it raises issues not previously discussed: remedies in architecture cases. The opinion is Palmetto Builders and Designers, Inc. v. Unireal, Inc., 342 F. Supp.2d 468, 473 (D.S.C. 2004), and the relevant part of it is:

"[B]ecause the constructed homes constitute infringing copies of the Plaintiffs copyrighted works, they cannot be lawfully resold without the Plaintiff's permission. Under 17 U.S.C. § 106(3) a copyrighted article may be sold only by the owner of the copyright. Any sale by another party without the owner's permission constitutes an act of infringement. The only exception to this rule exists under 17 U.S.C. § 109(a) which permits the resale of a copyrighted article by a buyer who received a valid non-infringing copy of the work. This is known as the "first sale" doctrine. An infringing copy, therefore, does not fit within the "first sale" doctrine embodied in 17 U.S.C. § 109(a) and cannot be resold without the resale causing an additional act of infringement. The homeowners, the Nickols and Kellers, own houses that are infringing copies. Thus, without express permission by the Plaintiff, any sale of the houses by them - or by any subsequent owner - will constitute an act of infringement for which the copyright owner could bring suit. To fully enforce its rights, the copyright owner would have to bring a new lawsuit every time one of the houses was sold. One of the reasons for equitable relief is to prevent such a multiplicity of lawsuits. For this reason, too, the injunction is not only appropriate but indeed necessary."

There is a heap wrong with this. The suit was for infringement of architectural plans, not the architectural work. Copyright in architectural plans does not give one the right to enjoin construction of a building, ever. The reasons for this hearken back to Baker v. Selden and are also found in Section 113(b). Congress reaffirmed this view in the 1988 Berne implementing legislation committee reports, see S. Rep. No. 352, 100th Cong., 2d Sess. 8 (1988); H.R. Rep. No. 609, 100th Cong., 2d Sess. 50-51 (1988). For the same reasons, monetary relief for infringement of the plans is limited to things like lost license fees; it does not include lost profits from the construction of the building nor defendant's profits from the sale of an infringing structure. If you want those type of remedies you have to sue for infringement of the architectural work.

So the first error in Palmetto is granting relief for infringement of plans that could be granted, if at all, only for infringement of the architectural work. The other error, laughable were it not true (or perhaps even more laughable because it is true), was the court's reference to the hapless homeowners not being able to resell their homes. Resale, the court thought, would be a distribution. Huh? These weren't mobile homes, carted off their mooring and taken to a different site. Distribution of an infringing architectural structure (as compared to the copy of it) is impossible.