Architectural copyright laws: beware of myths that could get you in hot water.

Let's assume that you paid an architect to design and produce plans for a retail store, restaurant, office, condo building or manufacturing facility, and now you want to use the same design and plans for a second location. If you contact the original architect, he or she will surely demand that you pay a second fee. This fee request is probably correct under your contract with the architect, U.S. copyright law or both. Beware--do not give in to the desire to save money or cut corners. Do not fall prey to one or more of these copyright myths:

* The client owns the copyright to plans if he pays for them.

* If there is no copyright notice on the plans, they are not protected.

* The copyright, if any, covers the plans, but not the building.

* If you change the plans or design by 20 percent, there is no infringement.

* Plans or buildings must be novel or unique to be protected.

* The plans or building design must be registered in the Copyright Office to be protected.

* If you are not aware of any copyright, you are not guilty of infringement.

* Liability for copyright infringement is limited to the cost of the plans.

Each of those myths is false. If you rely on one of these myths and proceed without permission to use the plans or instruct a new architect or builder to copy the original building, you risk serious liability for copyright infringement. Remedies in a civil lawsuit for copyright infringement may include the defendant's profits from the infringement and the actual damages suffered by the plaintiff, or at the plaintiff's option, statutory damages ranging from $750 to $30,000 per infringing copy (and up to $150,000 per copy in a case of willful infringement). The court can issue an injunction prohibiting further infringement and order destruction of the infringing plans or building. Finally, the court can order the guilty party to pay the plaintiff's attorney fees and costs.

What is protected?

Prior to the enactment of the Architectural Works Copyright Protection Act of 1990, copyright protection was afforded only to an architect's plans and not to the building represented in the plans. Now, however, an architect has two separate copyrights in his or her work, one in the plans (as a graphic or pictorial work), and one in the building itself, as an "architectural work." An "architectural work" is defined as "the design of a building as embodied in any tangible medium of expression," including any permanent habitable structures such as office buildings, restaurants, houses, condos, churches and museums. Bridges, dams, mobile homes, recreational vehicles and boats are excluded from protection, as are functionally required elements of a building including standard features such as windows, doors and other building components whose design or placement are dictated by utilitarian concerns.

What are the rights and who owns them?

Typical architectural contracts provide that the architect owns the plans and design of the building, and that the fee paid by the client pays for use of the plans and design with that building alone. Any transfer of copyright ownership from the architect to client must be in writing and signed by the architect. When there is no transfer, and no contract language spelling out ownership and rights to use the plans and building design, the 1990 Act applies. Under the 1990 Act, the architect in our example owns the copyright in his or her plans and can prohibit the client from making copies of the plans to use, sell or otherwise distribute. The architect also controls the right to copy the design of the building itself, as well as the right to create "derivative works." A derivative work might include any representation of either the plans or the building, or another building, even one that is significantly different from the original building.

Michael A. Lisi is an attorney with Detroit-based Honigman Miller Schwartz and Cohn LLP, a member of the Detroit Regional Chamber.

[ILLUSTRATION OMITTED]