The work of an architect involves creating plans for buildings and other structures, in such a way, so as to ensure that they are safe, economical, functional, and aesthetically pleasing. Copyright protection exists to protect any original and creative piece of work from being copied. The plans made by an architect, in whatever form, are also considered original pieces of work.
Architects and architectural firms should have proper knowledge of copyright law. Even if copyright infringement has occurred without actual intention, the architect will still be liable to pay damages or may even be subject to criminal prosecution.
A few important points that every architect should be aware of are described.
1. What is subject to copyright protection?
According to the U.S. Copyright Act of 1990, the tangible form of an original design of a building, such as an architectural plan or drawing, or a building is protected. This includes “the overall form as well as the arrangement and composition of spaces and elements in the design.”
“Building” is meant to refer to permanent and stationary structures that are habitable by humans. It includes houses, office buildings, museums, religious places of worship, summerhouses, and garden pavilions.
2. What is not copyrightable?
The definition of copyrightable architectural works does not include “individual standard features” or functional design elements.
Structures that are not subject to copyright protection are bridges, dams, boats, mobile homes, tents, walkways, and recreational vehicles. Also, structures whose design is dictated by the way they are used, such as doors and windows, are not copyrightable.
3. Limitations of Copyright Protection
Copyright protection for a structure that is visible in public does not prevent people from photographing it or distributing its pictures, paintings, and any other pictorial representations.
Also, the architect cannot prevent the owner of a building that was designed by him from altering the building or destroying it altogether. This limitation allows owners of a partially built structure to complete it using the design drawn up by the architect.
4. Registration is not Needed for Copyright Protection
For copyright to exist, registration is not needed. Copyright exists from the time the architect creates the design. However, in order to enforce copyright protection through legal proceedings, the copyright should have been registered.
The architect can collect statutory damages and attorney’s fees if the copyright has been registered within three months of publication of the design or before infringement has occurred. If not, the architect can only collect actual damages and profits.
A court tests for copyright infringement in two steps. The first step is to check whether the architectural work was actually copied. Two factors are determined—whether the defendant had access to the original design and thus had the opportunity to copy it, and whether sufficient similarity exists between the two works to lead to the inference of actual copying.
6. Substantial Similarity
Next, the court will determine whether the copying has been “substantial.” This will be done by the “ordinary observer” test or the “overall look and feel” test wherein an ordinary observer will determine whether the two works are similar enough to be considered to have been copied from each other.
Some of the characteristics that are taken into account when determining whether infringement has occurred include the layout of the floor plan, the frame footprint and dimensions, overall square footage, and silhouette of the building.
7. Ownership of Copyright
The architect who works as an independent contractor remains the owner of the copyright of the building’s design unless there is a written agreement specifying a different arrangement. The client for whom the plans have been drawn up needs a license to construct a building using those plans.
8. How to protect Yourself from Creating Infringing works for Clients?
Clients may bring plans for an architect and request them to modify it on the basis of their requirements. This exposes the architect to copyright infringement because the plans will be copyright protected. The architect should ensure that the building created after modification of the plans is not substantially similar to attract a lawsuit. In this situation, architects may either refuse to look at third-party materials brought by the client or they may insist on a written indemnification for any copyright infringement claims arising from these materials.