Homeowner's House Burns Down, He Tries To Rebuild… But Facing Copyright Threats From Original Builder

Copyright

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.

Filed Under: architecture, awcpa, blueprints, copyright, house, rebuilding, residential homes