The path to extending copyright protection to architectural works in the United States has not come without its challenges, especially as the federal courts continue to muddle through complicated and varying case law to determine whether architectural works infringement has occurred in a given dispute. Applying a uniform approach to analyze substantial similarity in a way that effectively protects architectural works across the federal circuits is necessary to fulfill the legislative intent and the constitutional intent of copyright protection. Likewise, a uniform approach will clarify the level of copyright protection that architectural works are permitted to receive in the United States. This note argues that courts should implement a “look and feel” test to determine the overall similarity of the architectural works, then separate out unprotectable elements through traditional copyright mechanisms, and compare again to ensure that enough original, copyrightable elements are present to declare the works substantially similar. Applying this multistep approach with an inverse ratio fulfills the legislative intent of the Architectural Works Copyright Protection Act as well as the constitutional purposes of copyright protection, and it provides architects with a uniform understanding of how the law will be applied should they need to initiate an infringement action
Madison V. Smiley,
A Half-Built House: The Substantial Similarity Analysis Split in Architectural Copyright Infringement Cases,
86 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol86/iss2/14