Is your renovation breaking copyright law?

Building owners, architects and interior designers involved in lobby upgrades and other renovations need to be aware of two recent amendments to the copyright law which apply to buildings. These amendments (which also apply to new construction) impose new limits on the right to make changes to existing interior and exteriors and to incorporate design features from other buildings. While these amendments have received little attention, their potential impact is significant. Those who violate the new rights created by the amendments may be liable to pay damages or have work stopped by court order in the middle of construction. Conversely, the owners of these new rights need to become familiar with the comply with Copyright Office procedures. All parties involved should review and revise their contracts to protect their right and limit their liability.

The first of these amendments is the "Visual Artists Rights Act" (VARA), which adds protection for "moral rights" to the Copyright Act for the first time. Briefly stated, moral rights allow an artists to prevent a building owner or anyone acting on his behalf from making certain alterations to works of art even if the owner legitimately purchased title to the art and acquired all the copyrights in the work. Moral rights are personal to the artist, and unlike traditional copyrights, cannot be sold or licensed but can be waived. VARA applies to sculptures, murals, paintings, photographs, prints and other works of fine art produced in single copies or limited editions of 200 or less after June 1, 1991. The term of VARA rights is generally the life of the artist (or surviving joint artist). Special VARA rules apply to works of art incorporated into buildings, and these have a direct effect on the right to proceed with building renovations. Failure to comply with these rules can results in damages becoming owed to the artist or the renovation being held hostage to the art.

What if a building owner wants to reduce the height of a sculpture because he wants to lower a ceiling during remodeling? In the case of free-standing works of art covered by VARA, the general rule is that the artist can prevent a change which harms the integrity of the art and receive damages for changes made without permission. However, the artist's right to prevent such changes can be avoided in one two ways. First, if the work was created by an artists who was an employee acting within the scope of his employment (even if the employer was someone provides that buildings themselves are other than the building owner), then no VARA rights attach to the work. Second, a building owner who purchases a work of art which was not created by an artist-employee can obtain a written waiver of VARA rights from the artist which allows the owner to make modifications to the work. To be effective, however, the waiver must meet the special requirements set out in the new legislation.

Two sets of additional rules apply to art which is physically part of the building, such as murals or three-dimensional detailing which is an integral part of a wall. What if an interior designer or building owner wants to subdivide a lobby to add a retail store, and wants to remove a mural as part of that renovation? If the art work can be removed without harm, the building owner can remove the work if he first makes a good faith attempt to notify the artist of the intent to remove the work and then provides a 90 period for the artist to remove the art. To facilitate notification, a new regulatory procedure has been established which allows the artist to register his name and address with the U.S. Copyright Office and allows the building owner to register his name and building. (The later allows the artist to locate the building owner so that the building owner can notify the artist.) An owner who sends notice to the address registered by the artist is deemed to have provided the notice required to proceed with removal. The filing fee is $20. Complying with this notice procedure will allow the owner to remove the work even if the artist does not respond and even if the art was not created by employee or if no waiver had been obtained.

If a work cannot be removed without harm, then a different rule applies. Even if the rights were not waived or the art was created by a non-employee, the owner can remove the work without violating VARA rights if the artist has signed a written certification acknowledging that removal could result in destruction, distortion or modification of the work.

VARA, however, is not the end of the moral rights analysis. New York, New Jersey and nine other states have enacted their own moral rights legislation. In order to proceed with renovations without violating the rights of artists and other creators of objects of interior design, it is necessary to comply with U.S. Copyright Office procedures and obtain legal waivers and acknowledgement which meet the requirements of both state and federal law.

The second copyright amendment -- which affects both renovation and new construction -- is the "Architectural Works Copyright Protection Act." This copyrightable. Previously, only two-dimensional blueprints were protected by copyright. The new copyright protection applies to both exteriors and interiors of buildings constructed after Dec. 1, 1990. It was applies to earlier designs for yet-to-be constructed buildings embodied in blueprints. Unless provided otherwise by agreement, the architect and not the building owner is the owner of the copyright. Replicating the design features of another building can now constitute copyright infringement which can subject the copier to damages and possibly result in a judicial stop work order entered in mid-construction. The new law governs the circumstances in which the building owner has the right to make renovations even if he is not the copyright owner. A building owner who does not own the copyright may face an infringement suit if he erects a second building similar to the one he commissioned and paid for. This result can be avoided, however, if the owner receives a proper assignment or copyright license from the architect. AIA form agreements will need to be revised to provide this as they now favor the architect.

In summary, building renovations and new construction are now subject to new copyright and moral rights laws which change the balance of rights between building owners, architects, interior designers and artist. In light of the importance of renovations in the current economic climate, proper waivers and acknowledgments should be obtained, and the contracts between the parties should be reviewed and revised to be certain that the allocation of rights meets with the parties' commercial objectives.

William A. Tanenbaum, is a copyright lawyer, with the law firm of Kenyon & Kenyon in New York. He has written and lectured on the impact of the architecture copyright amendments on building owners.