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Careful with that Trace Paper!
Judge finds Long Island home a blatant knockoff

While the Freedom Tower was grabbing headlines two years ago over a claim that David Childs’ 2003 scheme lifted its twisting form and diamond-shaped facade from a student architect’s project, a more mundane—but possibly more important— case was unfolding on Long Island.

At issue was a two-story Suffolk County home built by the defendants, contractor Winmar Homes and its president, Anthony Martino. Court documents show that Martino borrowed another architect’s design, and in doing so, violated federal copyright law. This cautionary tale offers a rare window onto case law over seemingly generic four-bedroom, suburban homes. The court viewed it as a case where the copying was not, in legal terms, “a question of fact,” meaning there was no doubt from the outset whether or not the contractor had copied the design of the architect, and the case did not need to be tried by a jury. The heart of the case, though, was whether the copying could be considered an infringement on the original architect’s copyright. As U.S. District Judge Eric Vitaliano noted in his March 6 ruling, it was.

In 1996, Glen Cherveny of Suffolk County firm Axelrod & Cherveny Architects designed a home that was later built for a client in Mount Sinai, Long Island. Khairunnisa and Ali Malik, who had seen the Cherveny home, brought a marketing brochure, which included a front elevation and floor plan, and pictures of the house to Martino in 2002 and asked him to build a similar one for them on Kemi Lane in Sayville. The Malik house was completed in 2003.

Cherveny told the court that he later happened to drive by the Sayville development and found the Maliks’ house stunningly familiar. After reviewing the building permit and plans, he deemed it a copycat design and filed suit. From the double doorways to the chimneys to the 16 identically placed windows, the court found the two structures to be substantially similar in silhouette, layout, and materials. Court papers reveal Martino testified that the picture submitted by the Maliks was“exactly what they wanted, the color and everything.”

According to Cherveny’s attorney, Braden Farber, only a handful of similar residential copyright infringement cases have been filed across the country. He called this “a wake-up call” for builders and architects who might too readily reach for the tracing paper when a client walks in the door with a picture of someone else’s work. “When you start copying or even attempt to modify the other architect’s designs,” Farber told AN, “you’re potentially violating the other architect’s copyright.”

Damages could amount to hundreds of thousands of dollars, since copyright law usually assesses damages based on the profits made by the infringer. Winmar’s attorney, Jeltje deJong, did not respond to requests for comment; thoughNewsday reported on March 12 that deJong and his client are considering an appeal, one cannot legally be filed until damages are assessed.

The court’s decision did offer a few surprising twists. Most substantively, the court rejected the defendants’ claim that Cherveny’s design was so blandly generic it could not be called original. Indeed the Architectural Works Copyright Protection Act of 1990 has established a broad scope of protection. (“For better or worse,” Judge Vitaliano wrote with a trace of irony, “courts have not required an ‘especially elevated’ level of originality in the architectural realm.”) In his 25-page decision, the judge even ventured into gestalt theory to distinguish Cherveny’s design, noting that though its components look like those in other homes, it is the “overall feeling, shape and arrangement of spaces, windows, and doors” that make it original.

Reverse gables and hipped roofs, that is, aren’t copyright-protected. “Individual elements in and of themselves may not be unique,” said Farber, who focuses on architecture, engineering, and construction law at the Mineola-based practice Farber Brocks&Zane. “However, my client independently put those together to form this design. That’s the originality and that’s the uniqueness.” 

Jeff Byles