© 2002, Gallagher & Dawsey Co., LPA
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 This protection is available to both published and unpublished works.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.
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.