U.S. Court of Appeals for the Second Circuit
Architectural Designs — Wrongful Copying
Zalewski v. Cicero Builder Dev., Inc.
Judges Katzmann, Wesley and Lohier
Background: The plaintiff commenced an action alleging copyright infringement and violation of the Digital Millennium Copyright Act against a number of defendants involved in the construction and sale of houses built with architectural plans allegedly copied from the plaintiff’s designs. Specifically, he argued that the defendants were using his designs in ways that the licenses did not permit them to use. The district court had granted summary judgment in favor of some defendants and granted attorney’s fees to two defendants.
Ruling: The Second Circuit held that there was evidence of copying of the work, however, the copying was not wrongful. Using the ordinary observer test, the court noted that there were many uncopyrightable elements contained in the designs.
Lee Palmateer for the plaintiffs-appellants; Paul C. Rapp, Autondria Minor of Schmeiser Olsen & Watts, George J. Szary of DeGraff, Foy & Kunz, Annette I. Kahler of Heslin Rothenberg Farley & Mesiti, Kevin R. Van Duser of the Sugarman Law Firm for the defendants-appellees