Copyright Protection for Architectural Works

Prior to the passage of the Architectural Works Copyright Protection Act (AWCPA), only “graphic” or “pictorial” works obtained copyright protection. Therefore, while it was prohibited to reproduce an architectural work’s blueprints, it was acceptable to copy the actual building.

What Buildings Are Protected by the AWPCA?

The author of an architectural work, however, possesses two copyrights under the AWCPA. The architectural work is protected under the first copyright in its graphic or graphical form. The second copyright safeguards the intangible architectural work, whether it is represented by a non-graphic work, such as the building itself, or graphic work, like a blueprint.

The AWPCA only provides safeguards for “buildings.” “Buildings” comprise both livable structures like homes and business buildings as well as human-used structures like churches, pavilions, and gazebos. In particular, the AWPCA does not apply to engineering projects like bridges, dams, and roads.

A Copyright Owner’s Rights Could Be Infringed if a Substantially Similar Building Is Constructed Without Permission

The Architectural Works Copyright Protection Act, established by Congress in 1990, expressly grants copyright protection to unique architectural designs in just about every format, including architectural plans, drawings, and the actual structures themselves.

This means that regardless of whether the blueprints themselves were duplicated, a builder may be held accountable for copyright infringement if the building itself violates another person’s plans or building. As a result, designers, architects, and owners shouldn’t make any kind of imitation of other architectural works.

Small Modifications to Plans Do Not Prevent Copyright Infringement

To assess whether an architectural work violates the original work of a copyright owner, courts typically use one of two standards. The court will try to evaluate if the allegedly infringing work is “substantially comparable” to the protected work using each of these criteria. The works are compared in their entirety by “ordinary observers” under the first test, also known as the “whole appearance and feel” test or “total concept and feel” test, to see if they are substantially comparable.

Therefore, a copyright owner’s rights may be violated by little adjustments that do not significantly alter the overall aesthetic of the work. The court filters out the unoriginal elements of the work using the second test, sometimes known as the “filtration” test, before comparing the original/protectable portions of the work to see if they are substantially similar. According to these criteria, modifying windows, doors, or other essential architectural components solely to make them more useful is not a valid defense against a copyright infringement lawsuit.

The Defense Against Copyright Infringement Is Not Always Innocent Infringement

A copyright owner need not prove actual copying or even intent to copy in order to win a lawsuit for copyright infringement. Instead, the copyright holder just needs to show that the alleged infringer had access to the work that is protected by copyright and that the allegedly infringing work is strikingly similar to the protected work. Consequently, even if they did not purposefully imitate a protected architectural work, a builder or owner may still be held accountable for copyright infringement.

A Successful Action for Copyright Infringement May Be Built Even Without a Copyright Notice

Despite the widespread misconception that copyright protection requires a “copyright notice, this is usually inaccurate. A copyright notice is not required for works published after March 1, 1989, in order to claim a copyright infringement claim. Therefore, regardless of whether the author provides a copyright notice, builders, architects, and owners should assume that all architectural works are protected under copyright law.

The Risk of Increased Damages, Attorney Fees, and Court Costs Is Associated With Copyright Infringement

In some situations, the copyright owner may be entitled to compensation from a violator in the form of statutory damages, legal expenses, and court costs. With statutory damages, the copyright holder is exempt from having to demonstrate the precise dollar amount of losses brought on by the infringement. Instead, the judge may grant up to $150,000.00 for each violation. In other words, a builder may be responsible for up to $150,000.00 in damages to a copyright owner for any structure that violates the owner’s rights.

The court may order the infringement to pay court costs as well as the copyright owner’s legal fees in addition to the statutory damages.

To Get Better Remedies Against Possible Infringers, Architects and Designers Should Promptly Register Their Copyrights

As mentioned in the previous section, copyright owners who register their copyrights in a timely manner may be eligible for statutory damages and attorneys’ fees. Before the infringement is started by the infringer or, in the case of published works, within three (3) months following the architectural work’s initial publication, the owner’s copyrights must be registered in order to be eligible for these additional remedies. It is easy, affordable, and even possible to register a copyright electronically with the United States Copyright Office. Visit http://www.copyright.gov for further details on the registration processes for copyrights.

Before Using Any Plans that You Have Received from Others, Make Sure You Have Permission to Build, Copy, and/or Modify Them

Especially with design-build projects, owners frequently request drawings from several architects or designers during the design and bid phases of the project. Some owners think it’s OK to give designs acquired through the design/bidding process to rival bidders.

Depending on the contractual arrangement between the owner and the original creator, this may be a problem. If the original designer owned all copyrights to the original design, a subsequent designer or contractor who didn’t know better could violate those rights by improving or building something that was remarkably similar to the original design. Therefore, before employing any architectural designs that an owner, construction manager, or other party gives you, you should make sure you have the legal authority to copy, modify, and/or construct such plans.

If You Accept Plans from Others, Demand Compensation for any Infringement of Your Intellectual Property that Results from Such Plans

As mentioned in the preceding section, parties sharing construction designs among themselves may have a number of unanticipated effects.

Therefore, you should demand that the company providing the construction plans cover you for any copyright infringement claims that result therefrom if you obtain construction plans from another party and are asked to construct, modify, or otherwise utilize those plans. In addition to the responsibility to indemnify, the written indemnification provision should also include a duty to defend any associated lawsuit and indemnification for any additional intellectual property, or unfair competition claims that may result from your use of such programs.

Even if the contractor or owner paid for the design, the original architect or designer is still the rightful owner of any copyrights in the architectural design.

The owner, construction manager, or contractor will frequently hire an architect or designer to create the project in many construction projects. The original architect or designer retains ownership of the copyrights regardless of payment. The purchaser only receives a non-exclusive license to use the blueprints for that specific construction project if the contract does not specify otherwise.

This implies that neither the owner nor the contractor necessarily has the right to utilize the designs they have purchased for other projects, nor do they have the authority to stop the original designer from selling the same plans to other owners or contractors.

In order to ensure that the architect or designer does not retain any intellectual property rights in the design that could cause problems in the future, owners or contractors should require that their design contracts contain a written assignment of all copyrights and other intellectual property that the architect or designer owns in the plans.

Alternatively, before using previously-purchased blueprints on subsequent projects, an owner or contractor should get formal consent from the original architect or designer. If the owner values the distinctiveness of the design, it should also demand an exclusive license. Otherwise, a designer could market the plan to other people.

Do I Need a Copyright Lawyer?

Consult a copyright lawyer with competence in copyright law if you have questions about copyright protection for architectural works. The easiest method to resolve your copyright issue is to get expert assistance with your case as copyright regulations for architectural works are complicated.