Tuesday, May 01, 2007

Pictures of Architectural Works

Sometimes you read an opinion and get a sense that rough justice was being done, but without much regard to the niceties of the statute. Groff Const., Inc. v. American Pride Building Co. , LLC, 2007 WL 495316 (M.D. Fla. Feb. 9, 2007), is such a case, if I understand the opinion. What I glean from it is that Groff claimed to own the copyright in an architectural work. Groff complained that defendants were copying a photograph he took of the architectural work. The court held that copyright in an architectural work does not give copyright owners the right to prevent others from using photographs of the architectural work. That is true up to a point; the point is expressed in Section 120(a), but that section covers the “making” of photographs, i.e. photographs that are independently created by taking your own picture of the architectural work. In Groff, as I understand it, defendants copied Groff’s photograph, conduct not covered by Section 120(a). The infringement action therefore should have been argued and analyzed as one for infringement of a photograph.

Here are the relevant parts of the opinion:

Groff asserts that since 1996, it is the owner of a copyright registration for The Cayman Model which was build at 5002 Lee Boulevard, Lehigh Acres, Florida in 2001. Groff used this model home for his business, but sold it in September 2001 to Adams Homes of NW Florida, Inc. Adams Homes then sold it to Humfleet, who later sold it to Fleet Lending Group, Inc. Groff is using a photograph of The Cayman Model on his website.

. Groff advertises its business by using photographs of the subject model home owned by D. Humfleet, Humfleet, and Fleet Lending…

A copyright owner may not prevent photographs of an architectural work once it has been constructed as long as the building is located in a public place.

Groff argues that based upon his ownership of a copyright of the architectural drawings of The Cayman Model he has the exclusive right to use a photograph of The Cayman Model. Groff is correct that the statutes do confer rights to a copyright owner, however, these rights are to the copyrighted plans and not to the embodiment of the work. Pursuant to the statutes and case law, Groff's alleged ownership of the copyright to the architectural work of The Cayman Model does not confer upon him the exclusive right to use a photograph of the embodiment of the architectural work. Therefore, the Motions to Dismiss Counts I and II of the Counterclaims and Third Party Complaints should be denied.


Anonymous said...

Professor - this is the proper cite: 2007 WL 495316.

Keep the architectural works posts coming - I love them!

Unknown said...

Yes, but, did he register the copyright in the photo? It appears that his case was relying entirely of his registration of the architectural work.

William Patry said...


I don't know if he registered the photo and would be surprised if he did. I agree he couldn't rely on the architectural works registration to sue for infringement of the photo, but I think he believed that his architectural works registration covered his ability to stop photos, a belief the court disabused him of.

Anonymous said...

I agree with Prof. Patry's analysis of the case.

I suspect that the reason that the plaintiff didn't register the photo is because the plaintiff didn't actually take the photograph - it probably had a photographer do so. Thus, unless plaintiff had either an assignment or work for hire agreement with the photographer, it didn't own the copyright in the particular image in the first place.

While we're on the subject of 120(a), a quick hypo:

Architect designs Building. To help sell his design to clients, Architect commissions Artist to create a rendering (i.e., a pictorial representation) of what Building will look like when constructed. Architect does not have a WfH contract with Artist, but does tell her that her right to use his design of Building is only for the purpose of creating the rendering that she is to deliver to him.

After Building is constructed, Artist wants to license her rendering of it to third parties (e.g., real estate agents). Architect objects, claiming that the rendering is derivative of his AW (and his permission to use it didn't extend to further reproduction of the work).

Architect asserts that 120(a) doesn't apply because the rendering was made prior to the building being constructed. Artist contends that once the building is constructed (assuming it is normally visible from a public place), 120(a) strips from Architect all rights regarding pictorial representations of the work, regardless of when they were created.

Who's right?

LKB in Houston

William Patry said...

I side with the architect on the 120(a) question

Anonymous said...

My gut is that Architects wins as well, based on the intent of 120(a). However, from a purely textual analysis of 120(a) -- which seems to be in vogue with Los Supremos at the moment -- I think Artist has a leg to stand on.

I've always thought that 120 was rather drafted in a rather sloppy fashion (apologies to the good Prof. if this was some of his handiwork). Heck, I've seen parties that were clearly architectural pirates argue that because the infringing building wasn't completed yet, 120 gave them the absolute right to complete construction with impunity because all they were doing was making "alterations" to a building! (So far, no Court has actually bought into this (Javelin v. McGinnis comes close, however), but why Congress didn't just add a couple of words to make it clear that the alteration / destruction exception was limited to "lawfully made" structures is a mystery to me.)

LKB in Houston

Alain James Retuya said...

I would like you to keep posting architectural works so I can post comment often. And also please incluse some pictures for me to see in respect for the title. Could you also have some pictures ofOutdoor Furniture done by some architects? Or say any architectural designs finished withacrylic shelves?