Duty to Defend a “Looney” Copyright Claim

By Gregory Lahr

Here’s a recent case we thought our readers would be interested in that was posted in our May 2012 Media Law Bulletin. When Looney Ricks Kiss Architects, Inc. (Looney) created an architectural design known as the Island Park Apartments in 1996, it probably wasn’t thinking of insurance coverage law. But, it appears likely that Looney’s attorneys brushed up on the topic in 2007 before filing suit against Steve Bryan and his affiliated building companies (Bryan) for infringement of Looney’s copyrighted architectural work. And, in 2012, it appears to have paid off. Looney sued Bryan in March 2007 for copyright infringement in relation to Bryan’s involvement in the construction of the Cypress Lake Apartments (starting in or around 2001), which Looney alleges infringes on its copyrighted architectural work. Bryan’s liability insurers (one through intervention, and one in a separate action in which it named Looney as a defendant) sought declaratory judgment that the breach of contract exclusions in their policies precluded any obligation they may have had to defend or indemnify Bryan under the personal and advertising injury coverage for copyright infringement. In Looney Ricks Kiss Architects, Inc. v. State Farm Fire & Casualty Co, the Fifth Circuit Court of Appeals court reversed the district court’s summary judgment finding the policies did not provide coverage and affirmed the prior ruling that the insurers had a duty to defend. Katherine Mast discusses Looney Ricks Kiss Architects here.