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

November 5, 2010 by · Comments Off
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.

A Thin Line Between Artistry and Architecture

September 21, 2010 by · Comments Off
Filed under: Business, Copyright Articles, law, Uncategorized 

The line between artistry and architecture is just as thin as the copyright protection given to architectural drawings according to an opinion denying summary judgment in the case of The Harvester, Inc. v. Rule Joy Trammell + Rubio, LLC, Civil Action No. 3:09cv358 (E.D. Virginia).  The technical elements of architectural drawings can sometimes overshadow the artistic and creative elements.  Nonetheless, architectural works are a protectable subject matter under The Copyright Act.

The Copyright Act grants exclusive rights to use and to authorize the use of a creative work for (1) reproduction of the work, (2) preparation for derivative works, (3) distribution of copies of the work to the public, (4) performance of the work publicly, and (5) displaying the work publicly.  Under Section 102(a)(8) of The Copyright Act, an “architectural work” is the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.”  Protection will cover the overall form as well as the arrangement and layout of the various unprotected ‘common elements,’ such as doors, windows, rooms, and other standard features.

The John Marshall Law School in Chicago, Illinois is well known in the intellectual property community for its patent, trademark, and copyright curriculum.  Having a similar namesake, The Hotel John Marshall in Richmond, Virginia had its share of copyright issues as the subject of copyright dispute in the Harvestor Case.

The Harvestor Case involved the copyright in architectural drawings for the renovation of The Hotel John Marshall, originally opened in 1929.  The architectural firm originally assigned to renovate the hotel obtained copyright in their drawings.  Another architectural firm was later assigned to the project and used the previous drawings to make their own architectural plans.  The Fourth Circuit determined that copyright protection for architectural works is thin because the overall creative expression reflects a compilation of unprotected common elements uniquely arranged.  However, a thin copyright is still a copyright deserving of protection.

One complicated feature of architectural works is that all building designs prior to December 1, 1990 are not subject to protection.  Therefore, anyone may incorporate building designs constructed or published before this date into their derivative architectural designs.  The problem arises when different individuals claim exclusive rights in derivative works, but appear similar because the works originated from the same pre-December 1, 1990 building design.

A derivative work is a work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship.  The standard of originality of a derivative work is low.  In Harvestor, the defendant claimed that the plaintiff’s drawings were undeserving of copyright protection because they lacked the requisite level of creativity to separate the drawings from the original work.  The court held that the plaintiff did make design choices that were worthy of protection.

The line between artistry and architecture may be thin, but it isn’t so thin that technical drawings and architectural works are viewed as one.  Claiming copyright in an architectural work will not also include a claim of copyright in the technical drawings of the work.  Therefore, separate applications will need to be filed to protect both of these features.

It is easy to take the art of architecture for granted because we engage in these creative structures on a daily basis. The choice of stone, the shape of the windows, and the arrangement of other features are all specifically coordinated for some intended purpose.  If you would like further insight on the art of architecture, visit the Muscarelle Museum of Art at The College of William & Mary between September 18 – October 24, 2010 to see two great exhibitions: Architexture: Photographs by David Brashear and Envelopes: Architects’ Unfinished Experiments with Building “Skins.”