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An architect cannot claim copyright protection for his drawings of colonial homes because many of the basic design elements are unprotected and dictated by standard house design and consumer expectation, the U.S. Court of Appeals for the Second Circuit has ruled.

The circuit said that a designer of a colonial home is “bound by certain conventions” for which he cannot claim copyright.

“Great artists often express themselves through the vocabulary of existing forms,” Judge Richard Wesley (See Profile) wrote for the court in Zalewski v. Cicero Builder Dev., 12-3448-cv.

“Shakespeare wrote his sonnets; Brahms composed his Hungarian Dancers; and plaintiff designed his colonial houses,” he wrote. “Because we must preserve these forms for future artists, neither iambic pentameter, nor European folk motifs, nor clapboard siding are copyrightable.”

Wesley was joined by Judges Robert Katzmann (See Profile) and Raymond Lohier (See Profile) in deciding the appeal from a decision by Northern District Judge Gary Sharpe (See Profile) in the case of architect James Zalewski and his company, Draftics. Ltd.

Sharpe had dismissed some of Zalewski’s claims, granted summary judgment for defendant construction companies, and awarded attorney fees to the defendants.

The circuit affirmed Sharpe on Thursday, when it held that any copying of Zalewski’s designs “extended only to unprotected elements of his works.”

Zalewski granted licenses in the 1990s to two companies—T.P. Builders and Cillis Builders—to use his colonial design. After the licenses expired, both companies hired other entities to customize those designs. Those companies are also named as defendants. Two houses were ultimately built.

In his complaints, first filed in 2010, Zalewski said the companies copied many of his designs, including the placement of rooms, windows, doors, stairs and other features.

After losing before Sharpe, Zalewski appealed to the Second Circuit, where oral argument was heard on Jan. 15, 2014.

In his opinion Thursday, Wesley said there was no dispute that Zalewski’s copyrights were valid, and there was substantial evidence the defendants copied from those designs. The question, he said, was whether that copying was lawful, and he answered in the affirmative, saying the defendant took only the unprotected elements of the architect’s work.

Copyright law protects only “‘original works of authorship,’ those aspects of the work that originate with the author himself [under] 17 U.S.C. §102(a),” Wesley said. “[E]verything else in the work, the history it describes, the facts it mentions, and the ideas it embraces, are in the public domain free for others to draw on.”

“It is the peculiar expression of that history, those facts, and those ideas that belong to the author,” he continued. “Thus, any author may draw from the history of English-speaking peoples, but no one may copy from A History of the English-Speaking Peoples. Any artist may portray the Spanish Civil War, but no one may paint another Guernica. And anyone may draw a cartoon of a mouse, but there can only be one Mickey.”

He said there are numerous doctrines that separate the protectable from that which is in the public domain, including the doctrine of “scènes à faire,” which holds that indispensable or standard elements­—”like cowboys, bank robbers or shootouts in the American West—get no protection.”

Another, Wesley said, is the “merger doctrine,” which holds that “some ideas, can only be expressed in a limited number of ways—single words or colors for example.”

“When expression is so limited, idea and expression ‘merge.’ Expressions merged with ideas cannot be protected, lest one author own the idea for himself,” he said.

Wesley said that efficiency is an important concern for architects, so “any design elements attributable to building codes, topography, structures that already exist on the construction site, or engineering necessity should therefore get no protection.”

And there are scènes à faire, such as neoclassical government buildings, colonials and high rise office buildings, which “are all recognized styles from which architects draw” which are not protected, he said. Similarly, “design features used by all architects, because of consumer demand, also get no protection.”

Here, Zalewski received no credit “for putting a closet in every bedroom, a fireplace in the middle of an exterior wall, and kitchen counters against the kitchen walls,” he said. “Furthermore, the overall footprint of the house and the size of the rooms are ‘design parameters’ dictated by consumer preferences and the lot the house will occupy, not the architect.”

In the end, Wesley said, “defendants’ houses shared plaintiff’s general style but took nothing from his original expression.”

Lee Palmateer of the Lee Palmateer Law Office in Albany represents Zalewski and Paul Rapp of Monterey, Mass. represents Cicero Builder.

Autondria Minor, partner at Schmeiser, Olsen & Watts in Latham, N.Y. represents T.P. Builders.

George Szary of DeGraff, Foy & Kunz in Albany represents Cillis Builders

Annette Kahler and Susan Farley of Heslin Rothenberg Farley & Mesiti in Albany represent DeRaven Design & Drafting.

Kevin Van Duser of Sugarman Law Firm in Syracuse represents V.S. Sofia Engineering.