Scope of copyright protection for architectural works

QUESTIONS PRESENTED The most important questions for any form of intellectual property are what gets protection, i.e., the subject matter, and the scope of that protection, i.e., the test of infringement. This Petition pertains to an acknowledged Circuit split regarding the scope of copyright protection for architectural works. Here, the architectural works in question incorporated an extremely rare residential homedesign feature—a prominently placed triangular atrium—but differed in other respects. Under the standard test of copyright infringement, a qualitatively significant similarity is sufficient for the infringement question to go to a jury, even if the two works otherwise differ. This standard approach is used by the First, Second, Fourth, and Tenth Circuits for architectural works in copyright. The Eleventh Circuit, however, employs an standard that gives architectural works the “least, narrowest, or ‘thinnest’ protection.” The Eleventh Circuit’s standard bars infringement claims from going to a jury if the infringer can identify any differences, even mere “minor dimensional discrepancies” or “incremental modifications.” Below, the Eighth Circuit focused on “differences” rather than the Eleventh Circuit and deepening an acknowledged Circuit split regarding the doctrinal test for infringement of architectural works in copyright. The questions presented are: (1) Does the Copyright Act support an test of infringement that gives the thinnest scope of protection? (2) Does the defiance below of this Court’s prohibition in Fogerty and Kirtsaeng against presumptive fee-shifting in copyright—and the pervasive deviations from Fogerty by the Fifth, Sixth and Seventh Circuits—justify the exercise of this Court’s supervisory powers? ii