Some people say that imitation is the greatest form of flattery. However, with an architectural work, imitation could result in copyright infringement. This article briefly outlines some things architects should be aware of in order to protect and enforce their copyright, and avoid copyright disputes.
It is well established that both architectural drawings and completed architectural works are entitled to protection under the Copyright Act. According to the Copyright Act, the definition of 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 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.” 17 U.S.C. §101.
Only the copyright owner has exclusive rights to reproduce and prepare derivative works based upon the copyrighted work. As such, it is important to make sure that the copyright is preserved in order to avoid disputes and the copyright is appropriately enforced.
- First and foremost, be clear on who the “owner” of the Copyright is. Generally, if an architect is employed by an architectural firm, all works produced by the architect will be considered a “work for hire” and the copyright ownership belongs to the architectural firm, unless the architect is an independent contractor – in which case, the copyright ownership remains with the architect. For avoidance of doubt, a written employment or independent contractor agreement should be executed between the architect and their firms.
- Make sure a copyright notice is placed on plans and drawings. Although the “©” copyright notice is not necessary for copyright protection and to assert a copyright infringement lawsuit, having a copyright notice puts others on notice of your copyright and may deter others from making any unauthorized copy. It is also important for architects to assume that all architectural works are protected regardless of whether or not there is a copyright notice.
- Register copyrights with the Copyright Office to obtain all the benefits afforded by the Copyright Act. Although an architect does not need register a work to obtain copyright protection, registration provides benefits, such as statutory damages and evidence of validity. Owners of registered copyrights may be able to receive statutory damages up to $150,000 per infringement, attorneys’ fees and court courts from the infringer, and it does not require the copyright owner to prove actual damages suffered. Registering with the Copyright Office is a simple and inexpensive procedure that should be a part of an architect’s business practice. Registration also constitutes prima facie evidence of the validity of the copyright ownership and of the facts stated in the certificate, which aids in enforcement.
- Constructing a substantially similar building without permission may infringe upon another person’s copyright. The test for copyright infringement varies with each court, but generally, the “ordinary observer test” is used – whether a regular lay observer would conclude that the alleged copy was actually copied from the copyrighted work. Under this standard, the copyright owner does not need to show an intent to copy or even actual copying, only that there was access and the buildings are substantially similar.
Copyright infringement of architectural woks is an interesting area of law with many difficult issues and gray areas. In order to better protect, enforce and avoid certain disputes that may arise with copyright of architectural works, architects should be proactive in their practice and take steps to secure their valuable assets.