New law copyrights architect's work.

New law coprights architect's work

Over the years, architects have asked, "Why is it that I can sue someone for copyright infringement if he copies my plans for a building, but not if he copies the building itself?"

The answer was that copyright law in the United States was not as favorable for architects as copyright law in Europe, where architects enjoyed the benefits of the long-standing Berne Convention, an international copyright treaty. Until recently, an architect in the United States did not have a copyright claim against someone who built a look-alike structure by observing, measuring or photographing the architect's original building.

This is no longer the case thanks to the Architectural Works Copyright Protection Act, which went into effect on Dec. 1, 1990. That legislation was enacted to bring U.S. copyright laws more into conformance with the Berne Convention. The Act created a new category of copyrightable authorship -- architectural works.

As a result, an architect who obtains a federal copyright registration today for "the design of a building, architectural plans, or drawings," can sue the maker of a copied, look-alike building and collect damages. In certain limited situations, the architect may even be able to stop the look-alike from being built.

What is the nature of these new rights, how are they obtained and what does it mean for the architect in the United States? An architectural work, just as every work of authorship covered by copyrights, must be "original." Basically, it must be created by the author, rather than being a copy of another architectural work.

According to the Act, an architectural 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."

The following guideline about what is and is not covered by the Act has been provided by the U.S. Copyright Office: Protection for the design of a building covers habitable structures such as houses and office buildings, as well as structures that are used but not inhabited by human beings such as churches, office buildings, gazebos, and garden pavilions. Protection does not extend to individual standard features such as common windows, doors, and other staple features. Generally, functional elements whose placement is dictated by utilitarian concerns are not included and neither are bridges, cloverleafs, dams, or walkways.

The owner of a copyright in an architectural work can prevent someone else from copying his work. An owner of a copyright in a constructed building, however, cannot prevent people from taking photographs, making sketches or paintings or displaying pictorial representations of the building if the building is in, or is visible from, a public place. In other words, all those tourists who take photographs of their families in front of the new skyscraper you designed are not infringing on your copyright.

In some countries, architects are able, to some extent, to prevent alterations to their works by building owners. In the United States, in contrast, the Act provides that the owner of a building may, without the consent of the author or copyright owner of the architectural work, make alterations to, and even destroy, that building. However, a building still can be protected against alteration or destruction under laws relating to landmarks, historic preservation, zoning or building codes.

Copyright protection for architectural works applies only to works created after Dec. 1, 1990. This includes an unbuilt structure embodied in unpublished plans existing as of that date. It does not include an unconstructed building if the plans or drawings were published before Dec. 1, 1990.

The duration of copyright protection varies depending on whether the work is created in a personal capacity or as a "work for hire." In the former case, protection lasts for the life of the author -- plus 50 years. In the latter case, it lasts 75 years from the publication date or for 100 years from the date of creation of the unpublished plans, whichever is less.

An architect who has not bothered to obtain a federal copyright registration for his building still has an architectural work that can be protected; however, without a registration, the architect is precluded from suing for copyright infringement. Also, if he fails to register promptly, he will lose his right to collect "statutory" damages. These are damages that can be collected without showing that they were actually suffered. Statutory damages can range from as little as $200 for "innocent" infringement to $100,000 for willful infringement. Considering that registration simply requires filling out a short form, paying a filing fee of $20 and submitting blueprints and photos sufficient to reflect the work, it is worth the investment. In case you still are not convinced, registration also may entitle you to recoup the fees you have paid your attorney if you prevail against a copyright infringer.

While the Act is a welcome development for architects, it also can create potential hazards and more work. The architect must now make certain that his own designs, and especially those developed by his staff, were not derived from and are too similar to those of other architects (at least for buildings constructed after Dec. 1, 1990). The architect also should develop, preferably with the help of legal counsel, procedures to ensure that he is maximizing the rights given him by the Act. In summary, the Act means more protection; it also may mean more monitoring and expense. As Bernini (or someone) said, "There's no such thing as a free lunch." In our view, the benefits to the architectural community will be well worth the cost of this particular "lunch."

John E. Daniel & George P. Hoare, Jr.

The authors are partners in the New York City office of the national law firm of Shea & Gould and specialize in the area of Intellectual Property Law. Shea & Gould, through its Construction Industry Practice Group provides legal services to the architectural, engineering and construction community and is General Counsel to the New York Chapter of the American Institute of Architects.