The Architectural Works Copyright Protection Act1 (AWCPA) conferred copyright protection on architectural works for the first time in American legal history as part of an effort to bring the United States into compliance with the Berne Convention, the international copyright treaty.2 While other countries had long included architecture in the list of works eligible for copyright,3 American courts have struggled with applying the AWCPA and incorporating architecture into the existing landscape of copyright law. While courts have generally extended protection to large-scale architectural projects, such as skyscrapers4 and entire mixed-use developments,5 they have so far afforded little protection to smaller works. In particular, private homes that fit into an established architectural style have often received only thin protection.6

Based on the underlying principles of copyright, however, this state of affairs is paradoxical. Novelists, who invest a great deal of time in writing a book and then create additional copies of the same work at little or no cost, are the prototypical copyright holders—incurring a significant up-front cost of creation and then a low marginal cost for subsequent copies. For the novelist, having a limited monopoly on that book is crucial; if other producers, who did not incur the initial cost of creation, could also sell copies, they could make a profit by charging only slightly above the marginal cost of producing each copy, thus undercutting the author’s price and preventing her from recovering her initial investment. Because the author could never recoup her initial cost of production, her incentive to create would be eliminated.

When it comes to building private homes, many architects create predesigned plans, which are then sold to numerous customers. As a result, each customer pays only a fraction of the cost of designing a fully custom home, and the architect is still able to make a profit. This market structure, however, is vulnerable to copyright infringement. If another home-building company can copy the architect’s design, that company can sell the design for much less, having avoided the initial expense of creation. The original architect will thus be unable to recoup that cost, and this market, which allows many middle-class families to build homes according to their own specifications, will be undermined. The market for smaller architectural projects therefore requires copyright protection. Some courts, however, have recently failed to accord these projects the appropriate protection; this treatment, if it continues and becomes widespread, could jeopardize the market for predesigned homes.

On the other hand, the designer of a large architectural work typically expects to sell it only once. After that project has been completed, the architect has been paid in full, recouping all of the cost of production.7 While later imitations might have some reputational impact, architects can profit from their larger projects without ever having to sell more than one copy, so they need not subsequently compete with other producers in order to recoup their initial costs of creation. In this sense, architects have an incentive to create large-scale projects even without copyright protection. Despite this lesser need for protection, courts seem most comfortable with finding infringement in cases that involve these large-scale projects.

Although many designs are of existing architectural styles and thus are not wholly new, existing copyright doctrine already holds the tools to allow courts to evaluate two designs’ similarity in this context. When analyzing literary works, courts use the doctrine of scènes à faire in order to sort out trivial similarities—those elements that indicate only that two works belong to the same genre and that are not accorded copyright protection—from significant similarities that establish infringement.8

“[S]cène à faire,” in its original theatrical sense, denotes a scene that is “inevitable and indispensible,” often so central to the play’s plot that, without it, there would be no play.9 In the copyright context, the term describes a set of elements so fundamental to a group of works that a finding of infringement cannot be based on them.10 As Judge Richard Posner put it, scènes à faire “are so rudimentary, commonplace, standard, or unavoidable that they do not serve to distinguish one work within a class of works from another.”11 Thus, the traits that define a work’s genre cannot also define the scope of its copyright protection. Otherwise, the author of a single copyrighted work could block any work in the same genre. This Comment argues that, by treating architectural styles as comparable to literary genres and the styles’ characteristic features as analogous to scènes à faire, courts can allow continued creativity within the industry without impeding future architects’ ability to create their own designs.

This traditional scènes à faire inquiry can be adapted to the architectural context with relative ease. The home-planning industry has a well-established system for classifying alterations to existing designs.12 Courts can employ these existing industry classifications, which separate minor design modifications from more significant ones, in determining whether the similarities between the plaintiff’s and defendant’s designs are mere scènes à faire that represent a common genre or instead constitute an illegal effort to capitalize on the original artistic contribution of another.

Part I of this Comment discusses the history and intent behind the legislation that extended copyright protection to architecture. Part II describes the existing ways courts have assessed substantial similarity in the context of architecture and examines what these various modes of analysis might mean, in practice, for architects seeking to protect their work. Part III proposes a new mode of analysis, one that relies on the existing doctrine of scènes à faire to provide works of architecture with the protection afforded by statute while still allowing future architects to explore existing ideas and concepts in creating their own work.

  • 1. Pub L No 101-650, 104 Stat 5133 (1990), codified as amended in various sections of Title 17.
  • 2. See Berne Convention for the Protection of Literary and Artistic Works Art 2(1) (WIPO 1979), archived at
  • 3. See Natalie Wargo, Note, Copyright Protection for Architecture and the Berne Convention, 65 NYU L Rev 403, 417–18 (1990).
  • 4. See, for example, Shine v Childs, 382 F Supp 2d 602, 609 (SDNY 2005).
  • 5. See, for example, Peter F. Gaito Architecture, LLC v Simone Development Corp, 602 F3d 57, 60, 68–69 (2d Cir 2010) (holding that the defendants had not infringed on the plaintiffs’ design of a mixed-use development but noting that the plaintiffs’ design was protectable through copyright).
  • 6. See, for example, Intervest Construction, Inc v Canterbury Estate Homes, Inc, 554 F3d 914, 919–21 (11th Cir 2008).
  • 7. See Daniel Su, Note, Substantial Similarity and Architectural Works: Filtering Out “Total Concept and Feel”, 101 Nw U L Rev 1851, 1855–57 (2007).
  • 8. See, for example, Bucklew v Hawkins, Ash, Baptie & Co, LLP, 329 F3d 923, 929 (7th Cir 2003) (noting the similarities between You’ve Got Mail and The Shop around the Corner as examples of scènes à faire); Reed–Union Corp v Turtle Wax, Inc, 77 F3d 909, 914 (7th Cir 1996) (discussing similarities among works inspired by William Shakespeare, including Vincenzo Bellini’s I Capuleti e i Montecchi and Leonard Bernstein’s West Side Story).
  • 9. R.W. Burchfield, ed, 3 A Supplement to the Oxford English Dictionary 1520 (Clarendon 1982).
  • 10. See Bucklew, 329 F3d at 929.
  • 11. Id.
  • 12. See note 225 and accompanying text.