Jordan Ramis pc. Attorneys at law
Copyright of Building Design
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

By John Baker
Spring 2011

If you are a construction design professional, you might be shocked to find your work being copied and used without your knowledge or consent. Your client might be equally shocked to find that he or she may be violating your rights by doing so. Original design drawings, specifications, and even the buildings themselves are subject to copyright protection, even though the ideas contained in them are not. Understanding the nature, extent, and enforcement mechanisms of copyright protections is an important element of any designer-client relationship.

To begin with, the basic concept of copyrights is straightforward. The underlying rule is that any person who authors an original work in any medium from which the work can be perceived, copied, or communicated has the exclusive right to reproduce the work or to make derivative works based on the original work. For the designer of a new building, this protection reaches two levels: one for the building as expressed in the author's design and construction documents, and one for the diagrams, models, and technical drawings and specifications themselves.

Copyrights are governed under the United States Copyright Act, at Title 17 of the United States Code. The Code gives the owner of a copyright the power to enforce his or her copyright by suing those who infringe on a copyright in federal court for remedies that include injunction against further infringement, seizure, or destruction of offending copies; recovery of actual and statutory damages; and confiscation of the infringer's profits or gains. In cases of willful infringement, such as removal of a copyright notice, an infringer may face criminal sanctions.

The copyright protection arises automatically when the original work is created. No notice or registration is required. Applying a copyright notice to design documents may help avoid infringement by putting the would-be infringer on notice of the author's claim of right, or by precluding an infringer's defense that the infringement was innocent. The notice need only contain the © symbol or the word copyright, the year of publication, and the copyright owner's name. Copyright registration is required before an infringement suit can be brought in court. One registers by filing copies of the protected work with the United States Copyright Office. Early registration, before the infringement or within three months of publication, creates a legal presumption that the copyright claim is valid and allows the claimant to recover statutory damages and attorney fees. This may be crucial in situations where proving significant economic damages or profits will be difficult.

Copyright protection applies only to original and tangible work. In no case does it extend to any idea, procedure, system, concept, or discovery that is illustrated or embodied in the work. The protection extends to independently created building design instruments as well as to the arrangement and composition of the building created from them, as long as it has some degree of originality. Yet the functional or standard building parts are beyond the scope of protection, as are strictly utilitarian buildings and structures such as bridges, towers, and highways.

Under the Code, copyrights in an original work vest initially in the author. This typically means the architect or designer who creates the original design instruments. The only exception to this rule exists when the author is an employee who prepares the protectable work within the scope of his or her employment, in which case the author's employer owns the copyright. The original copyright holder can transfer all or part of his or her ownership rights by written agreement, including by the terms of a contract for services. The person cannot transfer more rights than he or she owns.

Copyright ownership is independent of physical property ownership. The recipient of design drawings may own the documents but does not own the copyright unless it is licensed or assigned by the original author. A copyright license, which is typically included in the contract between an owner and the designer, allows use of protected materials without infringement. Thus the owner and its contractors may copy and distribute the documents to build the project. If the documents are published or used otherwise, the designer can seek enforcement against the infringer.

The extent of the license is negotiable. The parties may agree to permit expanded uses and reduced limits on reuse. Some contracts transfer all original copyrights to the client and grant a license back to the designer. Some even purport to create original copyrights in the client by setting up a work-for-hire (employer-employee) relationship between the parties. Regardless of what devices the parties employ, designers and their clients should each remember that the other has interests and rights in building-design documents that must be respected.