Building models for architectural infringement in Houston homes

Of course I used a set square!

Although when I have taught copyright law, I have always mentioned architecture and the fact that architectural designs, drawings and blueprints can be protected in British law as a artistic work, I rarely see any relevant case law. In fact my trusted copy of Cornish has just five lines on the subsistence of copyright architectural works and models. But now comes news that a federal District Court in the USA has awarded $1.3 million to a Texas design firm in an architectural copyright case, finding that Houston-based Hewlett Custom Home Designs, Inc. had a valid claim against Frontier Custom Builders, Inc. in federal law. The jury in the U.S. District Court in Houston found that Frontier had infringed Hewlett's copyrights in designing, constructing and marketing 19 houses, and Frontier's owner, Ronald Wayne Bopp, was also held personally liable for Frontier's activities.

The damages were based on the  profits Frontier had earned from the sales of houses and the court also ordered the destruction of infringing materials in Frontier's possession. Shane Hewlett, the principal of Hewlett Custom Home Design Inc., said, "I am extremely gratified that the jury vindicated our position and acted to help protect our intellectual property and the designs we proudly provide to clients."

Louis Bonham of Osha Liang LLP, who acted for Hewlett, said "Misappropriation of copyrighted building designs is a serious problem in the homebuilding industry and has been for many years. I hope the jury's message will be heard by those in the industry who do not take this issue seriously." 

Reports say that this is the second seven-figure judgment in an architectural copyright case entered by a Houston federal court. In 2012, the court awarded $3.2 million to an Austin architecture firm, Kipp Flores Architects, in a similar case against Hallmark Design Homes. Kipp had previously secured a third multi million dollar award back in 2001, in Norfolk Va.

Hewlett Custom Home Design, Inc. v. Frontier Custom Builders, Inc. and Ronald W. Bopp  Case 4:10-cv-04837; U.S. District Court for the Southern District of Texas, Houston Division.

and the CopyKat found this news story in the Sacramento Bee here http://www.sacbee.com/2013/05/20/5434324/osha-liang-llp-home-design-firm.html

More on the subsistence of copyright in architectural works, drawings, plans, designs and models here

http://en.wikipedia.org/wiki/Copyright_in_architecture_in_the_United_States

Down, Beuys!

In as dispute between the heir of famous German artist Joseph Beuys and a museum (Schloss Moyland), the Regional Court of Dusseldorf (OLG Düsseldorf) held that the museum would have required permission from Beuys/his heir for an exhibition of photographs by Manfred Tischer showing a live performance by Joseph Beuys. The court held that Beuys’ live performance qualified as an artistic work (there’s no fixation requirement under German law) and the photographs constituted an unauthorised adaptation rather than free use. Please read Birgit’s excellent IPKat post (here) for all the details.

OLG Düsseldorf, 30 December 2011 – I 20 U 101/09, press release (in German) here

Abode to go?

Thanks to my old friend Dan Bereskin (Bereskin & Parr, Toronto) I can bring you the following news, in the words of thierry (sic) Ehrmann himself:

"On 9 December 2009, the Abode of Chaos celebrated 10 years of combat for freedom of expression.

The Cassation Court's criminal chamber presiding over a second appeal has delivered an order dated 15 December 2009 for the destruction of the 3,123 works of art forming the corpus of the Demeure du Chaos created by the artist and sculptor thierry Ehrmann in 1999.

Founded by the conceptual act of thierry Ehrmann on 9 December 1999, the Abode of Chaos (per the NYT) is an œuvre au noir (nigredo) inspired by the alchemical chaos of the 21st Century, whose tragic and yet sumptuous embers were ignited on 11 September 2001.

After just 10 years - and more than 1200 press and TV articles in 72 countries around the world - the international art community today recognises the Abode of Chaos as a unique and "sacred" artistic factory. This free open-air museum with more than 3,123 works attracts more than 120,000 visitors each year.

Between February 2006 and June 2008, under its E.R.P. status (Etablissement Recevant du Public) status, the Abode of Chaos attracted 437,130 visitors of whom 21% came from outside France. The place also hosts a number of artists in residence.

Since 1999, the local authority of Saint-Romain-au-Mont-d'Or (where the Abode is located) has been pursuing a crusade of artistic negation against the Abode of Chaos and continues to call for "the restoration of the building to its original state" … which means effectively means the complete destruction of the Abode!

This historic case will now be submitted to the European Court of Human Rights in the framework of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case law on this Article 10 has frequently ruled against France in the past.

The wording of the Cassation Court's rejection of our appeal clearly reflects its concern to uphold French building regulations, and their application by the Grenoble Appeal Court, as being coherent with the freedoms of expression guaranteed in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Backed by the artists' collective and the weight of 108,000 petition signatories, thierry Ehrmann is more than ever determined to pursue the vigorous battle to defend the rights of all people to freedom of expression by launching an appeal against this second order delivered by the Cassation Court - and against French legislation - before the European Court of Human Rights.

Thierry Ehrmann considers that this decision violates his freedom of expression and that this freedom cannot be uniquely subjected to Building Regulations since artistic expression has been a national and universal right since the beginning of time.

In the current context, the petition to save the Abode of Chaos from destruction is of paramount importance. It will allow this extraordinary legal dispute to be taken before the European Court of Human Rights.

In an era when France is desperately seeking solutions to its diminishing global artistic influence and seems unsure of where to steer its national cultural policy (particularly with respect to the principle of free entry to museums), the Abode of Chaos is a bold and original response".

Follow the news direct from the Abode of Chaos here, here and here".While issues relating to human rights and cultural vandalism are always appealing, I find myself as ever focusing on the question of copyright: to what extent, if any, could the Abode of Chaos claim any sort of copyright protection and what, in commercial and moral rights terms, might be the outer limits of its protection? Readers' comments are, as ever, welcome.

Appeal of Star Wars helmets

Three judges yesterday told the creators of Star Wars that their Stormtroopers simply didn’t have the X factor (judgment here).

Andrew Ainsworth, who made the helmets and uniforms for the 1977 film Star Wars IV – A New Hope, subsequently set up a business selling replicas. In 2006 a US court granted Lucasfilm an injunction against Ainsworth and $20m damages. In the Chancery Division it was held last year that:

1) The US judgment could not be enforced in England.
2) Although the uniforms were based on paintings and drawings by Ralph McQuarrie (example shown here) in which Lucasfilm owned copyright, the replicas did not infringe that copyright in UK law because they were not ‘artistic works’. Under s. 51 CDPA ‘it is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.’
3) Even if the uniforms were copyright works, the copyright would have been impliedly assigned to Lucasfilm.
4) However, the US copyright claim was justiciable in England.

The Court of Appeal agreed except on the last point, with the effect that Lucasfilm is left with no cause of action against Ainsworth in England.

Why didn’t the court think that the helmet is an artistic work, a ‘sculpture’? It said it was impossible to define sculpture but it must at least be ‘intended to be a work of art’, to have ‘visual appeal’ as part of its purpose. It affirmed that the helmets were ‘no different from and serve the same purpose as any real helmet or armour used in a film’, they were ‘utilitarian and lacking in artistic purpose’. Really? The helmets and uniforms are clearly designed to produce an imaginative and emotional response in the viewer – something they do very well.

No viewers’ votes in this contest but an appeal on appeal may appeal...?