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 architecture-specific 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 similarities—joining 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 architecture-specific 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?

Scope of copyright protection for architectural works