Homeowner's House Burns Down, He Tries To Rebuild... But Facing Copyright Threats From Original Builder
from the copyright-law-strikes-again dept
It seems that this spring really is the time for obscure copyright disputes with odd connections to the US's weak-kneed compliance with the Berne Convention on copyright. We've already written a few times about the moral rights claim by the guy who created the giant "Wall St. Bull" statue, as well as a lawsuit against a Wall St. church for moving a 9/11 memorial -- both of which reference VARA, the Visual Artists Rights Act of 1990. VARA was passed as part of the US's slapdash attempt to pretend it complied with the Berne Convention, a document that was created in 1886, and which the US took over 100 years to even pretend to comply with. VARA wasn't the only such move in 1990. That very same year, Congress also passed the Architectural Works Copyright Protection Act of 1990, or AWCPA.
Now, hold that thought as we get into the meat of what this story is about. It's a posting on Reddit's /r/legaladvice/ subreddit, which is kind of famous for absolutely awful questions and even worse answers -- so take it with a grain of salt. But the posting claims that it's from a homeowner, who had customized things done to a model home which then burned down. In trying to have the home rebuilt as it was before, the original developer refused to rebuild it, and also refused to hand over the blueprints. Instead, the homeowner more or less recreated the plans from memory (and photographs and a neighbor's house that was similar) and had another builder start to rebuild -- only to receive a cease & desist letter from the original builder, threatening a copyright claim:
Here's what's going on:
- My house burnt down early this year. Total loss. No one was injured, but all my personal belongings are just gone.
- The source of the fire was electrical related (not my fault). The fire department said it was likely a charging lithium battery (my homeowners insurance is dealing with that situation)
- The house is only 3 years old.
- I purchased the house brand new, had some semi-custom things done to it, and actually had a great time with the home builder
Two months ago, once the dust settled, I reached out to the home builder (who is well known) to see how we could acquire the blueprints for my home...or at a minimum, the blueprints for my model. I also inquired about how I could engage them to rebuild my home as I am not planning on moving out of this neighborhood (I really like it here).
They took my info and said that they would get back to me. A few days later I heard from them regarding me/my insurance hiring them to rebuild. They said they are not set up for that and would like to help, but could not...bummer, but no big deal. I once again inquired about the blueprints. They said they would have to get back to me.
Eventually they got back to me after several days and said that they would not release the blueprints to me as they are their intellectual property. Serious bummer, but whatever...
My insurance company found a local reputable home builder and they started the rebuild 5 weeks ago.
Last week I got a cease and desist letter (with a threat to sue) form the original home builder saying that I/we were infringing on their intellectual property, they specifically called out the design of the house. Basically they know (due to the home being in an HOA) that the house will be designed back to the exact way it was before the home burned down.
So... yeah. Whether or not this is true, if I were a copyright professor, I'd be using this as an exam question. Because, damn.
Prior to AWCPA, it was generally recognized that blueprints could be covered by copyright, but the buildings constructed based on those blueprints were not covered by copyright. AWCPA changed that, and made "architectural works" a category of protected works under copyright (see: 17 USC 102(a)(8)). There have been some lawsuits on the question of whether or not residential houses are protected under AWCPA, with a key one being Richmond Homes v. Raintree, which found that, thanks to AWCPA, residential homes absolutely could be covered by copyright. But that case was about developers copying a style of other developers in different developments.
Flipping that around and arguing that the same would apply to someone rebuilding a house that burned down... certainly makes for an interesting question. From a purely objective standpoint it sounds insane that someone wouldn't be able to rebuild their own house because the original developer (who refuses to rebuild it) claims copyright on the design. But, thanks to our dumb laws, that copyright claim may be legit. Which is yet another reason why we should ditch the Berne Convention and not accept dumb ideas like allowing for a copyright in building architecture. There may, of course, be other issues here -- such as other contracts, or something with the Homeowner's Association that may negate the copyright issue. Or, perhaps the homeowner can argue that the "custom" designs were authored by him or herself, rather than the original developer.
There are, to put it mildly, lots of questions here, but I have to keep returning to the big one: why do we make copyright law so ridiculous that it could ever be considered to do something like block someone from rebuilding their own house? For what it's worth, nearly all of the commentary on Reddit seems completely wrong or clueless, with many people tossing out theories that have no basis in reality, including a clearly false claim that there aren't copyrights in architectural works.
I would be very surprised if this actually ended up in court. It would look really bad for the original developer, and the situation is so bizarre that a judge might be hard pressed to actually agree with the copyright claim. But, still, here we are with another example of copyright expansion causing all sorts of trouble.
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Filed Under: architecture, awcpa, blueprints, copyright, house, rebuilding, residential homes
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"Oh, well I'll just buy the plans aga- wait, no, I'll just pay someone else, nevermind."
Lessen learned. Do not, ever, have a building designed/built by someone who's not willing to offer replacement plans should something happen to it.
Probably not the message the builder wanted the other person to receive, but like it or not that seems to be the one they're going to get.
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Re: "Oh, well I'll just buy the plans aga- wait, no, I'll just pay someone else, nevermind."
And do not ever charge a lithium battery unattended, except in a fireproof container. Unless someone else was charging that battery "not my fault" isn't entirely true.
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Re: Re: "Oh, well I'll just buy the plans aga- wait, no, I'll just pay someone else, nevermind."
To be fair not expecting a battery to go from 'charging' to 'on fire' is probably a fairly safe assumption most of the time, so I'd be willing to give that one to them as it sounds like dumb luck rather than something they did directly.
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Re: Re: Re: "Oh, well I'll just buy the plans aga- wait, no, I'll just pay someone else, nevermind."
I'm not blaming them for it, I just think they shouldn't necessarily be absolved entirely. There's lots of news about things going very wrong with lithium-ion batteries, mostly unlike other types (lead-acid, NiCd, NiMH). They're not dangerous enough to need a full fume hood and blast shield, but it's worth taking some minimal precautions (like charging in a cookie tin rather than on a carpet).
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cookie tins?
And I'm sure you charge all of your cellphones, laptops, netbooks, iPads, etc. in cookie tins, right?
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Re: cookie tins?
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Re: Re: "Oh, well I'll just buy the plans aga- wait, no, I'll just pay someone else, nevermind."
I have seen "charging pouches" for sale that claim to be fireproof, but the typical person doesn't know about these. They certainly don't use them. And I very much doubt that they are actually *fireproof*.
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You Don't Own Your Property
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Re: You Don't Own Your Property
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Re: Re: You Don't Own Your Property
Your comments make it sound like you don't understand the basics of real property ownership and law.
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Re: Re: Re: You Don't Own Your Property
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Re: Re: Re: You Don't Own Your Property
We have tenant rights. True ownership would be Allodial Title. Aside from Nevada and Texas I believe, where you can in some situations pay a large sum of money to "buy out" your tax obligation, it's not possible to have Allodial Title in the U.S. You may meet the legal definition of "property ownership", but only as it's been redefined to fit our current legal and tax systems.
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That's basically infinite. Don't be fooled by those suburban areas with hundreds of identical houses. In older areas, there are lots of different designs--some duplicates but you'll rarely notice unless you're looking for it. You can change all kinds of minor/major details while remaining practical.
"Practical" is the key word though. Copyright doesn't cover functional/practical things in general, and shouldn't cover buildings.
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"Your door looks a tiny bit like the one on my copyrighted house - PAY ME!"
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Bad business sense
So...
That's ridiculous on the part of the builder. They've got a captive market with a semi-cost-insensitive buyer. That's easy money. Home prices have changed since it was built and nobody's going to notice if they overcharge by $10k or so.
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Re: Bad business sense
Which is why the insured value of the house had to be much more than the purchase value.
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Re: Re: Bad business sense
I even bought supplemental insurance to build up the property another 4 feet to code if I got a flood. If I were to get flooded without it, I would have to pay to build up the property before I would pass my geo to start construction.
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Clean-room reverse engineering?
That aside, I wonder if there's a legal analogy to clean-room reverse engineering of computer hardware and firmware. That's clearly legal, so perhaps this guy's reverse-engineering of the design from the house (without ever seeing the blueprints) is OK.
IANAL.
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Re: Clean-room reverse engineering?
The blueprint contains the most detailed, technical information--i.e. the utilitarian parts that shouldn't be considered copyrightable to begin with. If that's what the builder was claiming copyright on, this would be a way to work around it.
More likely they'll claim it on the "artistic" elements. You can't reverse-engineer that any more than you could reverse-engineer a novel.
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Re: Clean-room reverse engineering?
Under Architectural Copyright the Owner does have the right to modify and even destroy the building. that implies an ability to repair. I wonder if rebuilding after a fire can simply be called a repair? Usually something remains after a fire, even if only the foundations.
I wonder if the license to use the plans to restore the building survives the damage to the original building?
The entire building is not covered by copyright common elements cannot be copyrighted, things like doors windows etc. However the form (massing, decoration and floor plan) can be, assuming it is original. One could build an exact copy of the White House, because the copyright has long expired.
The Insurance Company has a duty to defend, since the loss is covered and they found the contractor, I imagine they are on the hook for the Lawyers and possibly for the infringement if it can be proven.
Finally I doubt there is very much case law on this point most cases I've heard of involve someone building a copy of a building in another location, something much more clearly intended by the statute.
IANAL I am an Architect.
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Re: Re: Clean-room reverse engineering?
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Re: Re: Re: Clean-room reverse engineering?
There is no "right to repair." That's a law that people want, not something that actually exists.
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Re: Clean-room reverse engineering?
Why no mention of the name of the developer, "who is well known"?
The source for this is /r/legaladvice. Its users tend to avoid naming involved companies unless they have to, and the subreddit specifically bans posting of personally identifiable information.
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Re: Re: Clean-room reverse engineering?
Well, then /r/legaladvice is the wrong venue for solving this guy's problem.
From a practical viewpoint, a little public shaming of how badly the developer is treating this owner is the quickest way to get this guy's problem solved.
(I know - it's the principle of the thing that's interesting to Techdirt. But if the guy just wants his house rebuilt with minimum hassle, that's the way to make it happen. I hope he's reading this...probably not.)
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just my silly mind.
Lol
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Re: just my silly mind.
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Great for me, I get paid by two different builders to Engineer the same house. They change some door entrances, rough openings for windows, some exterior treatments like paint or brick and poof!!
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Re:
Recreating something from a human's flawed memory is not a copy, it's a new creation of a tangible expression of an idea. Copyright protects tangible expressions, not ideas.
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Did the foundation burn up too?
When done, send pics (copyrighted of course) to original builder, and tell them the new design is called 'get bent'.
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Have a GC pull a tape on the slab or stem-walls, send it over to a Draftsman, draw up exactly the floor plan you want, the draftsman can slap on an elevation, and your done. Again, he shouldn't have to do that.. but if that builder wants to be a dick, does the homeowner really want that guy building his new home?
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Here we are with another example of someone that is freakishly obsessed with copyright needing to seek mental health treatment.
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You must be so proud of how clever you think you are.
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WEIRD
CP on the Plans...but did they REGISTER THE BUILDING under CP.. It would be very strange that 1 PLAN could bring a CP on Thousands of buildings..
#2..
OWNER made changes..no CP notice..Those changes Augment the building and the CP is default.
#3 how far does the CP go/cover...Does it include PAINTING THE HOUSE?? it can ONLY be 1 color and is THAT color under CP to the builder?
God this could be debated for YEARS..
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Re: WEIRD
move the closet...
change the roof type..
AND YOU HAVE A new design..
iM WAITING FOR THE LOCAL OUT HOUSE TO HAVE A CP..
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Re: Re: WEIRD
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Please...
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Re: Please...
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If that's the case, why didn't they just offer to sell him the rights to the plan in the first place? If I were the homeowner, I would ask the Insurance company to bid it out as a Design-Build. Pull the slab or stem wall dim's for the bid docs, and have the local custom builders bid on it first. No way I would let these guys build my house again.
As long as he gets the plan approved from his HOA's Arch committee, he should be fine.
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Sources?
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i've always loved parody. but, between this kind of crap and the most donald among us, the death and dearth of parody is on us. you cannot possibly say something so nutty anymore that it wouldn't be taken straight up by just about anybody.
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Work for hire?
FWIW.
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It seems simple to me
A house built to a specific set of blueprints is the idea of a house in tangible form.
The homeowner here seems to have had an idea of a house, and created his own tangible expression of it. There are only so many ways you can build a house, between the fact it needs to be a functional shelter and meet or exceed building codes.
Even if the result of the homeowner's memory looks similar, it would be no different from two movies of the same genre looking similar -- after all, there are only so many ways you can have a gun fight during a car chase.
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Company: I'm sorry but we will not accept your form of payment.
Former Homeowner: Then may I buy the design of the original item with the money I have in cash/check/credit?
Company: No, we legally hold the rights to this design to ensure no one is allowed to offer a similar service with visually similar goods.
Former Homeowner: In that case I will draft a new design so my house doesn't stand out like a turd in a sausage factory.
Company: By attempting to render onto yourself a service we are unwilling to render onto you you are preventing use from gaining money that we were not willing to accept from you in the first place. A BLOO BLOO BLOO
And then the company cried a river then sued the Nile for theft of intellectual property. the end.
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Aside from the copyright issue...
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Re: Aside from the copyright issue...
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What with the first section of the Constitution declaring that no State shall make any law imparing the obligation of contract (i.e. an HOA agreement), and with that same document stating that Congress shall make law with respect to copyright that promotes the public good (paraphrased), I'd see it as the HOA requiring an exact reproduction as taking the cake. (To be accurate, the HOA can only govern the external appearance. Whether or not some of those customizations were outside is worthy of consideration.)
IANAL, but I at one point I was a paralegal, and I've seen it go both ways. In this case, it's feasible that a judge might tell the HOA to make an exception, but a good lawyer would make the court aware of the ramifications of such a verdict. To wit, any homeowner within an HOA could then point to this case as res judicata that his/her HOA must bend to his/her will. Not a good idea, IMO.
I am not anonymous - my wife tells me exactly what I am every day! ;)
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Streisand Effect in effect.
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what are the options
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Re: what are the options
No, the insurance company offered to cover his residence at that exact location. Absent a government order with good reason to move (such as the site has become toxic, or a mudslide rearranged the geographical features, etc.), the insurance company is not obligated to move the fella on a permanent basis.
What they will do is send in their lawyers. They insured the HO knowing that there were HOA restrictions in place, and they were/are prepared to deal with them. This means that effectively, the insurance company will act on behalf of the HOA as well as the HO, and make the original builder back down and cough up. That person/company has received some very bad advice from his/her/their lawyer(s).
Word of advice - as a rule, insurance companies don't hire lawyers who graduated at the bottom of their class. Plus, I'd bet that this particular architect/homebuilder didn't hire a lawyer who specializes in IP law.
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