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Architectural Copyrights – When a building is more than the sum of its parts.

November 5, 2010 by
Filed under: Architecture, Copyright Articles, law 

A half-built house standing on a lot indefinitely is sometimes a result of bankruptcy, or shady contractors.  Sometimes, however, the unfinished house stands as a monument to a fundamental misunderstanding of architectural copyright law.  A thorough background in architectural copyrights is essential for prospective home owners, builders, realtors, and architects to ensure that their efforts and money don’t result in house that they can’t finish and can’t sell.

The typical example is when a family hires a contractor to build them a home.  The contractor shows them some plans and the couple picks the design they want for their house.  Half way through construction the couple fires the original contractor and hires a new contractor to finish the work.  Before the house is completed the couple finds themselves in court where a judge has just ordered them to cease all construction on the house.  Why can’t the house be completed?  Because while the couple owns all the wood and steel and glass that has gone into their house, they failed to ensure that they owned the design, as well.

In 1990 the US Congress passed The Architectural Works Copyright Protection Act which explicitly granted copyright protection for the architectural design of buildings.  Architectural works, however, have a few specific limitations.  First, registration is limited solely to “buildings”, and explicitly excludes “bridges, cloverleafs, dams, walkways, tents, recreational vehicles, mobile homes, and boats” in 37 C.F.R. 202.11.  Also excluded from registration are common design elements such as the standard placement of doors and windows.  Another exception peculiar to architectural works is that pictorial representations (photographs, paintings, etc.) of a building do not constitute infringement.

Generally, when an architect sells a design for a building they are actually only selling a license, while they maintain the copyright to the work.  Licensing agreements can be very complicated an great care should be taken in crafting the agreement to ensure that everyone understands and is satisfied with what they are receiving.  For a one-time home buyer a license to build a single home may be sufficient.  A construction company may want a license for them to build as many houses as they like.  They may want an exclusivity clause ensuring the architect can’t sell the design to a competitor.  They may want to buy the right to display the plans in advertising, a use that would not be granted in a simple agreement to simply build houses.  Another option might be to buy all rights from the architect, rather than simply a license.

A lawyer is essential for creating a well-crafted, custom tailored license agreement, and can be extremely helpful in explaining what the various provisions mean.  While a license agreement between the parties without the help of a lawyer is binding, it can often result in unforeseen consequences should problems arise down the road.  A good lawyer will ensure that the licensing agreement will predict all eventualities.

The couple in the example above cannot finish their house because the design for the house is owned by the contractor.  Even if the couple were to throw away the blue-prints and draw up new plans themselves it will likely constitute infringement.  Courts will infer there was copying if the old and new plans are substantially similar and the person that drafted the new plans had access to the old plans.  So what options does the couple have for finishing their house?  They can negotiate a license agreement with the old contractor, they can redesign the house to purposefully not look similar to the old design, or they can hire a new architect to design the unfinished sections of the house without him ever seeing the original plans.  All of these measures could have been avoided, however, if more care was taken when drafting the license agreement for the architectural work.

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