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Construction & Design Residential

Classic or chaotic, copyrighting architectural works is an art form

By Amy Goldsmith and Laurie Stanziale, Tarter Krinsky & Drogin

Congratulations! You’re about to embark on a residential development, and you have a list of architects to interview. Or you maybe an architect who has been referred to a new client whose commercial building business is growing rapidly.

The gerkin building in london
The Gherkin Building in London

Before stepping into the negotiating ring, it’s important to understand how copyright protection intersects with architectural works. Why? Because failure to do so may lead to litigation over whether an architect may use the plans again or whether an owner or developer may modify the plans if the architect’s services are terminated before the conclusion of the project.

Which party owns copyright rights to the line, drawing or plan, and who can use them, is typically one of the most heavily negotiated points in an architect’s agreement.

It is not uncommon for everyone involved, including the attorneys, to lack a full understanding of the Copyright Act and how it applies to the architect’s work product.  It is therefore important to understand what is protected by copyright, who owns the copyright, how to file a timely copyright application, understand what is a copyright infringement and how architects can protect their works.

What is protected by copyright?

The Copyright Act defines an architectural work as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.”

Recognized styles, known standard elements, market expectations, common design features, design elements attributed to building codes, topography, engineering necessity, consumer expectation and standard house design are not protected. Any design parameters or constraints within the architect’s work determined by the owner’s plans for use of the building or ideas are not considered the original work of the architect.

Who owns the copyright – the architect or owner?

It’s common when copyrights are discussed with respect to an architect’s work product to use the term “work for hire”. A “work made for hire” is work that is either prepared by an employee within the scope of employment or commissioned for use as a contribution to a collective work. So who is the owner if the architect’s work isn’t a “work for hire?” The default legal position is that the architect owns the copyright and that will not change unless the parties sign an agreement indicating otherwise.

US Air Force Academy, CO
US Air Force Academy, CO

Although rights can be transferred whether or not a copyright application has been filed, since the scope of the architect’s rights is limited to original, not common, features, it is important to include a list of those features. This way, both the architect and owner know precisely what is being transferred. If the architect plans to reuse some unique features in future projects, then a license-back agreement may be needed. If the owner plans to use the architect’s design for future developments, the owner should understand what is protectable.

File a Timely Copyright Application

An architectural work can be the subject of two different copyrights: one for the architectural work itself and one for the plans or drawings. “Publication” of an architectural work occurs when the plans or drawings are distributed or made available to the general public.  Construction of the building does not itself constitute publication. Best practices for filing a copyright include:

  • File within three months of the first publication date. Timely filing provides the copyright registrant with the ability to be awarded statutory damages and attorneys’ fees in a successful copyright litigation. Statutory damages are monetary awards between $750 and $30,000 per infringing work for a non-willful infringement and up to $150,000 for willful infringement.
  • Determine who will file in the architect-owner agreement. If the owner is the filer, then an assignment should occur before the filing date. If the architect is the filer, the assignment to the owner can occur after the filing date.

What is Copyright Infringement?

Copyright infringement requires access to the copyrighted work and copying protectable elements that make the second work substantially similar to the original. If the alleged infringer had a reasonable opportunity to see the copyrighted work, access is established. Determining whether infringement occurred can be challenging when it comes to architectural works.

How Can Architects Protect Their Works? 

Seattles Experience Music Project
Seattle’s Experience Music Project

Architects can protect their works by understanding what portions of their works are copyrightable and making sure that those elements are included in the copyright application.  Even if the architect licenses the owner to use the copyrightable elements, or assigns the copyright to the owner, it is best for both the owner and architect to protect the unique elements of the architectural work.

Examples of unique architectural features include the jagged exterior panels of the Air Force Academy in Colorado, the pickle shape of the Gherkin Building in London, the curved elements of the Lotus Temple in Delhi, the unique crumpled shapes of the Experience Music Project in Seattle, the interesting intersecting shapes of the Cubic Houses in Rotterdam and the petal-like structure of the Guggenheim Museum in Bilbao.

Protecting an architectural work by copyright is important to both the owner and architect.  Addressing this issue early on will save time and money for both the owner and architect, allowing the parties to focus on the successful planning and design of the project with full knowledge of what elements of the design are copyrightable and who owns them.

*Jonathan E. Temchin, an associate with Tarter Krinsky & Drogin, contributed to this article.

 

 

 

 

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