IN A MARKET WHERE MANY OF THE homes being built fall into the same product category—think patio homes in Florida—how similar can the designs be before they're considered unlawful copies? A federal jury in Minneapolis recently confirmed that the burden of proof goes beyond just looking alike.

In 2001, Minneapolis-based Rottlund Co. filed a copyright infringement suit against Chicago-based Pinnacle Corp., its subsidiary, Town and Country Homes of Minnesota and Illinois, and its architect, Bloodgood Sharp Buster, alleging that the companies had copied its designs for a popular townhome product; it sought $32 million in damages. Last December, the jury found for the defendants, though Rottlund has appealed the verdict.

At issue were 600 townhomes Pinnacle's subsidiaries had built in Minnesota and Illinois during 2000 and 2001. Town and Country Homes built the units in a style known as back-to-back, in which four units face one way, with another four units making a mirror image behind them. Rottlund argued that the design was a copy of its Villa series, which it has built since the 1980s.

TOO CLOSE FOR COMFORT: The Rottlund Co. claimed in a copyright infringement lawsuit that Chicago-based Town and Country Homes copied this design for a townhome product.
TOO CLOSE FOR COMFORT: The Rottlund Co. claimed in a copyright infringement lawsuit that Chicago-based Town and Country Homes copied this design for a townhome product.

The implications of this case could reach beyond those of past copyright cases, which have tended to involve custom homes or commercial buildings. “This was unique because it involves an entire product line,” says Holly Newman, of the law firm Mackall, Crouse & Moore, which represented Bloodgood in the suit. “It would chill competition if one builder could build a product type and essentially keep other production builders from building it by alleging copyright infringement.”

A change to the federal copyright law in 1990 made the case possible. The law was amended to allow the physical structure—not just the home's blueprints, which the law has always covered—to be copyrighted. To prove copyright infringement, a company must prove that another had access to its copyrighted material and that the finished product shows substantial similarity.

Participation in parades of homes made it simple for Rottlund to prove Town and Country had access to its products but proving “substantial similarity,” and, ultimately, copyright infringement was more difficult. Rottlund's executives and lawyers declined to be interviewed for this article, but the company issued a statement that the court “found that during the design process the defendants had access to Rottlund's plans, toured Rottlund's townhomes, and that some defendants took pictures of Rottlund's townhomes. In addition, the court ruled that the ideas the defendants employed in their designs were substantially similar to the details of the ideas in Rottlund's designs.”

Bloodgood's attorney acknowledges that her client's designs do resemble Rottlund's—and those of every other builder that constructs back-to-back products. “All eight-unit back-to-backs are going to have some similarities,” Newman says. “But these aren't a copy.” Bloodgood had designed back-to-back townhomes for other clients since the 1970s and drew upon that experience when Town and Country wanted to begin building the product in the late 1990s, she adds.

The key to success in the case for Bloodgood, Newman says, was the firm's ability to show the process it went through in designing the townhomes, including some of its earliest drawings, complete with editing marks.

Newman advises that architects and builders keep as much of the work product as possible as part of protecting themselves against similar copyright infringement claims. “Town and Country didn't have a policy in place to keep that information, and they got lucky it still existed,” she says. She also recommends keeping market research and competitive materials separate from design and project files. “That can help you demonstrate that you had access to but didn't copy something in the marketplace,” Newman says.

Learn more about markets featured in this article: Minneapolis-St. Paul, MN.