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© 2002, Gallagher & Dawsey Co., LPA
March 2002
Copyright law has granted architects powerful rights to cover their
designs. Surprisingly, few architects understand the fundamental
aspects of copyright law and how it should be used in their practice.
Most architects recognize that architectural works are afforded some
copyright protection, but most don't appreciate how the protection is
obtained, who actually owns the copyright, and numerous copyright
issues that they should look out for. This article will explain the
basics of copyright law as it relates to the practice of architecture
and provide practical advice you can incorporate into you practice.
What Is A Copyright
Copyright is a form of protection provided by the laws of the United
States to the authors of "original works of authorship," including
literary, dramatic, musical, artistic, and certain other intellectual
works; including architectural works. This protection is available to
both published and unpublished works. Copyright protection affords the
creator the right to control the display, publication, reproduction
and creation of derivative works.
An original design of a building embodied in any tangible medium of
expression, including a building, architectural plans, or drawings, is
subject to copyright protection as an "architectural work." This
includes the overall form as well as the arrangement of spaces and
elements in the design, but does not include individual standard
features or design elements that are functionally required.
Additionally, the term building is limited to structures that are
habitable by humans and intended to be both permanent and stationary,
such as houses and office buildings. Structures other than buildings,
such as bridges and dams, are specifically excluded from copyright
protection.
When Does Copyright Protection Exist
Generally, the public believes that an application and a lot of paper
must be filed with the government to obtain copyright protection. This
is false.
Copyright protection exists in an original work as soon as it is
created. Therefore, a copyright exists as soon as you create an
original sketch. Today your drawings do not even need any indication
of copyright to acquire protection. However it remains good practice
to include the statement " Copyright © 2002, by John Doe" on your
drawings. It is preferable that John Doe is actually the architect
that seals the drawings, however the firm name will also suffice.
The Benefits Of Registering Your Copyright
Architects who take the additional step of registering their work with
the Library of Congress are afforded additional remedies if an
infringement suit should arise. One must file for registration prior
to bringing a suit for copyright infringement. Additionally,
registration is also required to collect statutory damages and
attorney's fees in an infringement action. The ability to collect
statutory damages in an infringement suit is critical because actual
damages are often difficult to prove. Statutory damages may only be
obtained when the work is registered before the infringement occurs!
Drawings, Specs, & The Building May Be Registered
In practice, your architectural drawings, specifications, and the
actual building itself may be protected by copyright. However, only
the original aspects that may be protected.
Protecting all three components of your product requires two
registrations. First, the drawings and specifications should be
registered as "technical drawings." Second, the building design should
be registered as an "architectural work" covering the overall form as
well as the arrangement of spaces and elements in the design.
Registration Process
Copyright registration information may be found on the U.S. Copyright
Office website at www.copyright.gov. Architectural drawings should be
registered using form VA for "visual arts," while original
specifications should be registered using form TX for "literary
works."
The engineering drawings should be removed from the drawing set when
submitting architectural drawings for registration. Recall that only
original aspects of the architectural work may be registered, which
makes Section 6 of both forms extremely important.
The applicant must identify all of the "derivative work" in the
drawings and specifications. A derivative work is one based on one or
more existing works. In other words, the applicant must identify all
the items that are not original and therefore not subject to
registration. This includes standard details, specifications, and any
features incorporated from previous projects. Leaving Section 6 blank
would imply that everything submitted is original. A copyright may be
found invalid if the derivative works are not properly identified in
this section.
The forms should then be sent to the Library of Congress with the $30
fee for each application and one copy of each work to be registered.
Who Owns The Copyright - The Firm Or Designer
The architectural firm will own the copyright to all works created
by the employees acting within the scope of employment. This is true
even absent an employment agreement explicitly limiting copyright
ownership.
Length of Copyright Protection
Copyright protection lasts from the date the material was created
through the life of the last surviving creator plus an additional 70
years. The copyright duration is 95 years from first publication or
120 years from creation, whichever is shorter, for works made for
hire.
Should All Projects Be Registered?
This is a business question to be analyzed by the owners of
architectural firms. The likelihood of infringement and ability to
prove actual damages must be weighed against the inconvenience of
filing for registration.
Surprisingly, a search on the Library of Congress website indicates
that many of the largest architectural firms in the country do not
have a single registered copyright. It is hard to imagine that
projects with multimillion-dollar design fees are not worthy of the
$30 fee to obtain federal registration and protection of the
additional remedies afforded by registered copyrights.
Copyright Issues To Watch Out For In Practice
Beware of the client that has fired a previous architect and wants you
to pick up the design where they left off. To avoid a charge of
copyright infringement you should contact the prior architect and get
their permission in writing to use the work they have completed.
Additionally, have the client provide you with written notice that
they have the right to use the drawings and seek written
indemnification.
Exercise particular caution when a client brings you photographs or
brochures of various designs to incorporate into their project. Since
1990, buildings have copyright protection as architectural works.
Therefore, if you copy any original design features of a building
constructed since 1990 you may be subject to a claim of copyright
infringement. To avoid such a claim, make sure not to use the
photographs in your design. Have the client describe generally the
type of architecture they prefer and keep your suggestions and designs
original. Never keep photos, brochures, or similar material from the
client in your files. This level of caution is not required when you
know the building of reference was constructed prior to 1990.
Copyright protection prior to 1990 only applies to the actual
architectural drawings, and not the building.
Lastly, always be aware of what the owner-architect contract says
about ownership of the copyright. Under standard AIA contracts the
architect retains copyright ownership. When using non-AIA contacts one
should always compare the copyright ownership clauses with those of
the AIA contracts. |
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