Contractors must be mindful of copyright protection for architectural works.

Contractors must be mindful of copyright protection for architectural works.

A copyright is a set of exclusive rights granted to the creator of a new work of expression.  When an author, artist, musician or one of many other creative professionals creates a new work they are automatically  granted a copyright to their work.  A copyright can be registered in the United States to strength the rights associated with a copyright, however registration is not a prerequisite to the grant of copyright protection.  A copyright gives its owner the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original.  If someone other than the copyright owner, exercises one of these exclusive rights without authorization, that can be considered copyright infringement.  A copyright owner can protect their copyright in the United States by filing a lawsuit in Federal District Court.  The copyright owner can request an injunction to stop the infringement and request monetary damages for copyright infringement which has occurred.

When most people think of copyright they think of art like sculpture, music or movies.  Copyright law in the United States does grant copyright protection to many other creative works of expression.   The Architectural Works Copyright Protection Act was passed by Congress in 1990 and protects architectural works created on or after December 1, 1990.  An architectural work is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.  The overall form as well as the arrangement and composition of spaces and elements in an architectural design may be granted copyright protection.

The Copyright Office may register a claim to copyright in an architectural work if the work is a humanly habitable structure that is intended to be both permanent and stationary. Examples of works that satisfy this requirement include houses, office buildings, churches, and museums. Designs for things such as bridges, highway cloverleaves, dams, walkways, tents, recreational vehicles, or boats cannot be registered as architectural works.

Individual standard features of the architectural work, such as windows, doors, or other staple building components are not eligible for copyright protection.  Similarly, purely functional features of an architectural work, such as innovations in architectural engineering, construction techniques, or the interior arrangement of furniture, lighting or paint, are not eligible for copyright protection.

Contractors or builders that receive architectural plans for a building must be mindful of the copyright which may be attached to those plans.  The lack of a copyright notice does not mean that the plans are free to use.  Ignorance of copyright protections afforded architectural plans is not a defense to copyright infringement.

Making minor changes to an architectural plan will not provide a defense to copyright infringement.  When presented with a copyright infringement case, courts will determine if the alleged infringing work is “substantially similar” to the copyrighted work.  Courts will look at the “total look and feel” of the works compared in their entireties by ordinary observers.  Standard features and unoriginal portions of the work will be filtered out in the court’s analysis.  Thus, changing standard features or minor aspects of an architectural plan will not change the total look and feel of a work and will not provide a defense to copyright infringement.

When a contractor receives plans from a client or purchases plans from an architect, it is important that the contractor researches the copyright related to the architectural plans. The party providing the architectural plans needs to have the proper license to use the plans.  When the architectural plans are made by an employee of a contractor then it can be considered a work for hire.  However, if the contractor purchases the plans from an independent contractor, copyright does not automatically transfer to the contractor.  The contractor may have a nonexclusive license to use the plans to build a specific project, but the contractor does not have the right to reuse the plans on another project, absent a contract allowing them to do so.  The architect may also sell the architectural plans to another party, absent an agreement that the contractor has an exclusive right to the design.  Therefore, it is important that contractors have well crafted contracts which address copyright matters before using architectural plans provided by an outside party.

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