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Zalewski v. Cicero Builder Dev. Inc.

United States Court of Appeals for the Second Circuit

January 15, 2014, Argued; June 5, 2014, Decided

Docket Nos. No. 12-3448-cv, No. 12-3450-cv, No. 12-5127-cv


 [*98]  [***1025]   Wesley, Circuit Judge:

This case calls on us to explore the limits of copyright protection for architectural works. Plaintiffs-Appellants are James Zalewski, an architect, and Draftics, Ltd., the company through which he does business (collectively "Zalewski" or "Plaintiff"). Zalewski asserts that he created and then licensed numerous designs for colonial homes to two construction companies.2 He alleges that these companies and their contractors infringed his copyright in these designs by using them in ways the licenses did not permit and after the licenses had expired. Zalewski also asserts that Defendants' actions violated the Digital Millennium Copyright Act ("DMCA"). Defendants principally contend that their designs do not copy the protected elements of Plaintiff's  [**3] designs.

The district court dismissed portions of Plaintiff's complaint and granted summary judgment to Defendants on the remaining claims. The court also granted two Defendants' motions for attorney's fees. Plaintiff now challenges the dismissal of his complaint, the grant of summary judgment to Defendants, the denial of summary judgment to him, and the award of attorney's fees. We AFFIRM the district court, in part, holding that (1) any copying of Plaintiff's designs extended only to unprotected elements of his works, and (2) Plaintiff failed to plead a violation of the DMCA. We also VACATE, in part, holding that the district court applied the incorrect legal standard in awarding attorney's fees, and REMAND for the district court to apply the correct standard.


In the 1990s, Plaintiff James Zalewski was self-employed as an architect doing business through the firm Draftics, Ltd. During this period, he granted Defendants T.P. Builders ("T.P.")3 and Cillis Builders ("Cillis")4 licenses to use several colonial home designs he had created. According to Zalewski, after the licenses  [**4] expired,  [*99]  T.P. hired Defendant V.S. Sofia Engineering ("Sofia")5 and Defendant DeRaven Design & Drafting ("DeRaven")6 and Cillis hired DeRaven to customize his designs for their customers and continued marketing his designs, or customized versions thereof, without his consent. Defendant Cicero Builders ("Cicero")7 built two houses using DeRaven designs that were allegedly based on Plaintiff's originals.

Zalewski filed the first of these now consolidated actions in July 2010 in the United States District Court for the Northern District of New York, alleging that Defendants infringed the copyright in his original designs. Zalewski asserts that, in building the homes and customizing the  [**5] designs, Defendants copied the overall size, shape, and silhouette of his designs as well as the placement of rooms, windows, doors, closets, stairs, and other architectural features. In addition to his copyright infringement claims, Zalewski asserts causes of action under the DMCA, which prohibits, among other things, "intentionally remov[ing] or alter[ing] any copyright management information." 17 U.S.C. § 1202(b).

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754 F.3d 95 *; 2014 U.S. App. LEXIS 10609 **; 111 U.S.P.Q.2D (BNA) 1023 ***; Copy. L. Rep. (CCH) P30,616; 2014 WL 2521388


Subsequent History: Costs and fees proceeding at, Motion denied by Zalewski v. T.P. Builders, Inc., 2015 U.S. Dist. LEXIS 106 (N.D.N.Y, Jan. 5, 2015)

Prior History:  [**1] Appeal from orders and judgments of the United States District Court for the Northern District of New York (Sharpe, Judge). Plaintiff alleged copyright infringement and violations of the Digital Millennium Copyright Act against numerous Defendants involved in the construction and sale of houses built with architectural plans allegedly copied from Plaintiff's designs. The district court dismissed Plaintiff's claims against some Defendants, granted summary judgment in favor of the remaining Defendants, and granted attorney's fees to two Defendants for costs incurred defending against Plaintiff's first and second amended complaint. For the reasons stated below, the orders and judgments of the district court are AFFIRMED in part, and VACATED and REMANDED in part.

Zalewski v. T.P. Builders, Inc., 2012 U.S. Dist. LEXIS 180854 (N.D.N.Y, Dec. 21, 2012)Zalewski v. T.P. Builders, Inc., 875 F. Supp. 2d 135, 2012 U.S. Dist. LEXIS 84647 (N.D.N.Y, 2012)Zalewski v. T.P. Builders, Inc., 2012 U.S. Dist. LEXIS 166263 (N.D.N.Y, Nov. 21, 2012)


copying, designs, architectural, district court, similarity, summary judgment, unprotected, colonial, uncopyrightable, Defendants', features, award of attorney's fees, copyright protection, compilations, attorney's fees, Copyright Act, infringed, quotation, cases, copyright infringement, amended complaint, houses, doors, marks, style, words, substantially similar, no protection, public domain, complaints

Copyright Law, Scope of Copyright Protection, Subject Matter, General Overview, Statutory Copyright & Fixation, Protected Subject Matter, Architectural Works, Civil Infringement Actions, Elements, Copying by Defendants, Defenses, Common Law Copyrights, Ownership Interests, Governmental Works, Copying by Defendants, Substantial Similarity, Civil Procedure, Appeals, Standards of Review, De Novo Review, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Summary Judgment Review, Standards of Review, Intrinsic Tests, Ordinary Observer Test, Original Works of Authorship, Constitutional Copyright Protections, Copyright Clause, Expression & Idea Distinguished, Collective & Derivative Works, Originality Requirement, Scope of Protection, Audiovisual Works & Motion Pictures, Literary Works, Sound Recordings After 1972, Patent Law, Evidence, Judicial Notice, Scientific & Technical Facts, Copyright Infringement Actions, Digital Millennium Copyright Act, Prohibited Conduct, Abuse of Discretion, Costs & Attorney Fees, Attorney Fees & Expenses, Reasonable Fees, Damages, Types of Damages, Costs & Attorney Fees