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"Identifying architectural copycats; 4th Circuit adopts test for infringement"

North Carolina Lawyers Weekly

July 28, 2015

North Carolina Lawyers Weekly called on Nexsen Pruet's Jeff Reichard in reporting on a recent opinion from the 4th U.S. Circuit Court of Appeals.

Reporter Phillip Bantz explored the court's June 23 decision in Humphreys & Partners Architects v. Lessard Design.  An excerpt:

When the housing market crashed, architects who were hurting for work and sore from losing jobs to other firms began filing more copyright infringement suits accusing competitors of stealing building designs.

“In the downturn there were architects who were cut out of deals and decided, ‘I don’t have any work on my plate now and instead of beginning another project I’m going to file suit,’” said Jeffrey Reichard, an intellectual property lawyer at Nexsen Pruet in Greensboro who specializes in construction litigation.

But it’s going to be more difficult for these types of lawsuits to survive.... The decision marks the first time that the court has applied the so-called “two-part substantial similarities test” to determine whether architectural copyright infringement claims can move forward.

The test, which has been used in many other types of copyright cases, requires proof that the original building design and the alleged knockoff are both subjectively and objectively similar....

"Previously it wasn't clear which test to use," Reichard said. "This makes it a bit more onerous on the copyright owner to establish substantial similarity."

More from North Carolina Lawyers Weekly (subscription required).

Jeffrey M. Reichard represents owners, general contractors, subcontractors, suppliers, design professionals and lenders in disputes regarding construction issues, including delays, defects, liens, bonds and related matters. He is a licensed patent attorney who represents both large and small entities in all aspects of intellectual property procurement and enforcement, including prosecution and litigation of patents, copyrights, trademarks and trade secrets.