Articles / 08.17.2016

Caveat Contractor: Architectural Designs Are Protected Copyrights.

By David R. Posteraro

Imagine you are a contractor and a client comes to you with plans and accompanying architectural drawings for a new home. Or suppose a business client approaches you and wants to build an office building like his competitor’s. Before you break ground, make sure the residential client has the rights to those drawings and the business client understands that you cannot simply copy the competitor’s building design. If not, you (and they) may be infringing the copyrights of the architects of the original home and office.

Copyright is a form of legal protection afforded by law to the authors of “original works of authorship”. In 1990, Congress passed the Architectural Works Copyright Protection Act. The Act extended copyright protection to original architectural designs. This protection extends to the design in virtually any form, including blueprints, plans, drawings and the buildings themselves. It covers the overall form as well as the arrangement and composition of spaces and elements in the design. It does not, however, include individual standard features or design elements that are functionally required.

Not all designs are covered. Only those created on or after December 1, 1990 are covered along with those created in unpublished plans or drawings but not constructed as of December 1, 1990 but constructed before January 1, 2003. Certain structures are not protected namely bridges, clover leafs, dams, walkways, tents, recreational vehicles, mobile homes, and boats (which are protected separately by the Vessel Hull Design Protection Act of 1997).

The design protection is automatic upon the creation of the work. It need not have a © notice attached to it or be registered with the Copyright Office. However, without such Copyright Office registration, the design will not receive certain statutory benefits. Specifically, if the work is registered with the Copyright Office prior to an infringement or within three months of its publication, the architect may be eligible to receive statutory damages and payment of legal fees in an infringement action. The statutory damages allow up to $30,000 per infringement or if the infringement is willful, up to $150,000. Alternatively, a plaintiff can choose to receive “actual damages”, which may be greater as the copyright holder may be entitled to a percentage of the profits that the infringer received from the infringement.

Many clients of custom buildings believe that since they paid for the plans, they are the copyright holder. This is certainly not true in the case of an independent contractor in the absence of a written agreement and only otherwise true if the creator is an employee whose work was created within the scope of his or her employment.

Another misconception is that minor changes to plans will avoid a claim of copyright infringement. Courts generally will attempt to determine whether the alleged infringing work is “substantially similar” to the copyrighted work. In doing so they will look to the “total look and feel” of the works compared in their entireties by ordinary observers. Minor changes that do not change that total look and feel infringe a copyright owner’s rights. Courts will filter out the unoriginal portions of the work (e.g., windows, doors, etc.) before examining the original (i.e., protectable) portions of the work to determine if they are substantially similar. Thus changing standard functional features is no defense to a copyright infringement claim.

Ignorance of the copyright is no defense. The copyright holder does not have to show an intent to copy or even actual copying. She need only establish that the alleged infringer had access to the work and that the infringing work is substantially similar to the copyrighted work.

If you are an architect or designer you should register your copyrights in order to be afforded that availability of statutory damages. If you contract with an architect or designer, make sure they are the original designers and can grant you the right to construct the plans including the right to copy and modify them before using. Every agreement for the construction of a building should contain a written warranty against copyright infringement and an indemnification against copyright infringement.

If you have questions contact David Posteraro at 216-736-7218 or drp@kjk.com or Matt Viola at 216-736-7253 or mtv@kjk.com.