The Architectural Works Copyright Protection Act of 1990 provides protection for a constructed building or architectural plans, models or drawings as an architectural work. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design. As an architect, builder or owner involved in the development and construction of a residential or commercial structure, considering copyright issues in the initial stages can help avoid major problems in the long run.
- Ownership and use: Agree upfront on who will own the copyright in any plans or drawings created for a given project and what future rights, if any, the owner will have to use them after the project has been completed. Be sure to consider future issues that may arise like maintenance and upkeep on the finished structure, future additions, or new structures built using the same plans.
- Contracts: Make sure that contract language accurately reflects the agreement of the parties. Often parties utilize standardized legal agreements, like those available through the American Institute of Architects (AIA), without fully understanding what provisions are included in the agreements. Different versions of these agreements, even from the same provider, may not incorporate the same provisions regarding the ownership and use of intellectual property.
- Use of another’s work: If you are an architect or builder and have been provided with plans or drawings, be sure that you have a legal right to use them. Do not rely on assurances from the owner or even the owner’s lawyer that there are no copyright problems. Where necessary, obtain a competent opinion of counsel. For an architect, improperly using the plans of another may result in liability for reverse passing off under the Lanham Act, as well as copyright infringement.
- Registration: If you own the copyright in an architectural work, timely seek registration of the work at the Copyright Office. Registration is required before you can file suit in court to enforce your rights. Additionally, obtaining a registration before infringement begins entitles a copyright owner the benefits of statutory damages and attorneys fees.
- Copyright misconceptions: Avoid reliance on copyright misconceptions. The most common misconception is that paying for a work means that you own it. While this may generally be true for works created by employees, an independent contractor owns what he or she creates regardless of who pays for it unless there is an agreement in advance to the contrary. Another common misconception is that there is no copyright infringement if a design is changed by a given percentage, like 15 or 20 percent. When comparing two designs, the test for infringement is whether there is substantial similarity between them.
Why is it important to consider these matters? The Copyright Act provides significant penalties for infringement. If an owner or builder improperly copies an existing structure or uses architectural plans without authorization, he or she may be liable under the Copyright Act for actual damages and the infringer’s profits or statutory damages. Actual damages generally means paying for the plans that were improperly used. An infringer’s profits will be the value of the building less proven deductible expenses. Rather than actual damages and the infringer’s profits, a copyright owner may elect instead to recover statutory damages, which are set by the court and may range from $750 to $30,000. If the court finds that the infringement was willful, the statutory damages may be increased to up to $150,000. It is important to note that damages may be recovered for each act of infringement, namely, each plan copied and each building built. Being aware of copyright laws will help everyone involved in a project avoid expensive and time-consuming disputes.
Diane Burke
Huntington Center
41 South High Street, Suite 2200
Columbus, OH 43215
614.458.9827
diane.burke@steptoe-johnson.com
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