Imperial Homes Corporation v. Lamont

• Decision Date: 13 April 1972
• Docket Number: No. 71-3423 Summary Calendar.,71-3423 Summary Calendar.
• Citation: 458 F.2d 895
• Parties: IMPERIAL HOMES CORPORATION, a Florida Corporation, Plaintiff-Appellant, v. Michael M. LAMONT and Mrs. Michael M. Lamont, his wife, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

458 F.2d 895 (1972)

IMPERIAL HOMES CORPORATION, a Florida Corporation, Plaintiff-Appellant, v. Michael M. LAMONT and Mrs. Michael M. Lamont, his wife, Defendants-Appellees.

No. 71-3423 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

April 13, 1972.

John A. Curtiss, of Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., for plaintiff-appellant.

Arnold D. Levine, Levine & Freedman, P.A., Tampa, Fla., for defendants-appellees.

Before BELL, DYER and CLARK, Circuit Judges.

CLARK, Circuit Judge:

In this non-jury copyright infringement action, the district court concluded that the plaintiff-appellant had abandoned and waived its copyright rights covering a set of architectural drawings for a residence by reproducing the floor plan design therefrom in a sales promotion brochure which was distributed to induce prospective customers to employ the plaintiff to construct the home. The district court pretermitted as unnecessary any finding as to whether the defendants had copied the floor plan drawing from the brochure in developing their own set of plans for a duplicative house. We hold the court erred in its waiver and abandonment decision and, therefore, remand this cause with instructions to make the pretermitted finding and for further proceedings in accordance herewith.

The plaintiff-appellant, Imperial Homes Corporation, is a merchant-builder engaged in the business of designing, constructing and selling residential dwellings. Imperial developed architectural plans for a residence it named "Chateau". Long prior to the events giving rise to this action, Imperial registered a claim for a copyright on the complete set of architectural drawings for the Chateau home with the Registrar of Copyrights of the United States of America as a published work under Class I (Drawings or Plastic Works of a Scientific or Technical Character). It subsequently constructed model homes according to this design and opened them to the public. In the course of advertising its business, Imperial prepared and distributed to the public an advertising brochure which contained only the floor plan from the complete set of copyrighted architectural drawings. It duly noted in the brochure that it claimed a copyright right on the floor plan, but no effort was made to copyright the advertising brochure. These brochures were used by Imperial in the ordinary course of its business to advertise and promote the sale of homes of the Chateau design, and agents and employees of Imperial gave this brochure to any person who expressed an interest in having Imperial build this home for them. While some minor differences between the copyrighted drawings and the copy appearing in the brochure are apparent from the exhibits in evidence before this court, the parties stipulated, and the lower court found, that the floor plan drawing appearing in the sales brochure was the subject of a valid United States copyright owned by Imperial.

The defendants, Mr. and Mrs. Lamont, became interested in acquiring a home of the Chateau design. They visited one of the residences of this design which had been constructed by Imperial, where they made detailed observations and measurements. Copies of the sales brochure were available to interested prospects who visited this home, including the Lamonts. The evidence was conflicting as to whether the Lamonts obtained a copy of this brochure and as to whether they copied it in developing their own set of drawings for a duplicative residential dwelling. The court resolved the first conflict by finding that they did obtain a copy of the brochure on one of their visits, but declined to make any finding as to whether the Lamonts copied the floor plan in the brochure on the theory that copying this plan would not constitute a copying of the copyrighted drawings. The Lamonts were never shown the complete architectural plans for which a copyright had been issued and there was no direct or circumstantial evidence that either Mr. or Mrs. Lamont had access to Imperial's full set of copyrighted plans for the "Chateau" model home. The court found that they did not copy these plans.

The Lamonts did proceed to develop a set of drawings illustrating the manner of constructing a residential dwelling, intended to be substantially similar to Imperial's model home which they had visited and measured. They next proceeded to construct this home for themselves, hiring their own contracting force and purchasing their own materials. After the duplicate home was built, Imperial brought this action against the Lamonts seeking injunctive relief against further dissemination or use of the allegedly infringing plans, damages, return of profits and attorneys' fees.

The resolution of two issues controls the disposition of this appeal. First, did the reproduction of the floor plan from the copyrighted set of architectural drawings in an advertising brochure waive or abandon the copyright right? We hold it did not. Would copying this reproduction constitute an infringement of the copyright right? We hold it would.

I.

Article I, Section 8, Clause 8 of the Constitution confers upon Congress the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Congress has exercised the prerogative flowing from this fountainhead of authority by creating a statutory system for the registration and protection of copyrighted materials, which is contained in Title 17, U.S.C.A. This national system permits copyright rights to be secured on "... all the writings of an author." 17 U.S.C.A. § 4. In Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 4 S.Ct. 279, 28 L.Ed. 349 (1884), "an author" was defined as "he to whom anything owes its origin; originator, maker; one who completes a work of science or literature." Hence, the architect who originates a set of blueprints for a dwelling is as much an author for copyright purposes as the writer who creates an original novel or the dramatist who pens a new play. This authorship concept is no more than one facet of the essence of that which merits copyright protection — originality. However, while such originality is the test for copyrightability, it does not extend so far as to require that novelty or invention, which is the sine qua non for patent protection, be present. Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L. Ed. 630 (1954). Also basically germane to the case at bar, Congress has provided that works classified as "drawings or plastic works of a scientific or technical character" are copyrightable, 17 U.S.C.A. § 5(i); and the regulations of the Copyright Office expressly include "an architect's blueprint" as a work registerable within this class. 37 C.F.R. § 202.12(a). Finally, every valid copyright vests in its holder the exclusive prerogative "to print, reprint, publish, copy, and vend the copyrighted work;". 17 U.S.C.A. § 1(a).

II.

The district court's legal conclusion that the publication of the floor plan design from its copyrighted drawings in a promotional brochure waived and abandoned Imperial's statutory copyright rights, is both novel and erroneous. A part of the rights which the very first sentence of the copyright act confers upon a statutory copyright owner is the right to make and to publish copies of his protected work, 17 U.S.C.A. § 1(a). It would be illogical to permit the enjoyment of these...