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Copyright or Copy Wrong? PRACTICE
BUSINESS
Fourth in a Series DESIGN
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by Greg Hancks, AIA › Copyright or Copy Wrong? Part 1
› Copyright or Copy Wrong? Part 2
How do you . . . distinguish between copyright in architectural › Copyright or Copy Wrong? Part 3
drawings and the design itself.
Summary: You may know (or think you know) your basic rights and
obligations under copyright law. But what misconceptions are
commonly held by people you work with: your boss, employees, clients,
or consultants? You might be surprised. This is the fourth in a series of
articles exploring various aspects of copyright that are frequently
misunderstood. In this installment, we look at what kinds of work Further information is available on the
created by architects fall under copyright protection. In particular, we U.S. Copyright Office Web site.
will focus on the distinction between copyright in architectural drawings Application of copyright law in
and copyright in the architectural design itself. particular situations may be complex.
You should consult a qualified lawyer
when you need advice about
“Instruments of copyright issues in your business.
It is true that making the use of drawings a matter of contract, not copyright only,
enables enforcement under breach of contract in addition to copyright
infringement. That approach also avoids any notice and registration formalities
required for copyright protection. In addition, mentioning in an owner/architect
agreement the architect’s property right in drawings has the practical benefit of
calling the owner’s attention to the issue. As described in the prior article in this
series on the use of a copyright notice, it is usually better to prevent
unauthorized copying than to try to recoup damages after it occurs. In any event,
no one is particularly surprised when an architect objects to an owner’s reuse of
the architect’s drawings for a new and different project, unless of course the
architect has consented after negotiating acceptable terms.
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AIArchitect This Week | Copyright or Copy Wrong? http://info.aia.org/aiarchitect/thisweek09/0925/0925p_copyright.cfm
In a 1994 ethics case, the AIA’s National Ethics Council considered a similar
question: whether reuse of measured drawings by an owner’s second architect
was a violation of the AIA’s Code of Ethics and Professional Conduct, apart from
any copyright infringement. In its decision based on the circumstances in that
case, the Council found no ethics violation.
It should be emphasized
that any copyright in as-built
drawings or specifications
is only the right to control
their reproduction.
Copyright does not limit use
of the single copy provided
to the owner for building
operation and maintenance.
The owner owns that copy.
It is the right to make
additional copies, whether
by copier, scanner, or
redrawing, that may be limited by copyright.
As noted in the second article in this series, Congress has amended the
copyright statute over the last 20 years to conform to the Berne Convention, an
international copyright treaty. As part of that process, the Architectural Works
Copyright Protection Act of 1990 (AWCPA) extended copyright protection to
architectural design itself. Buildings designed or constructed after 1990 fall under
the category of an “architectural work,” which is defined as:
It would be surprising if, upon first encountering the distinction between copyright
in architectural drawings and copyright in the architectural design itself, you
aren’t a bit puzzled. The distinction can be a brain-teaser both conceptually and
when applied to particular circumstances. Once you do understand the concept,
you may think copyright protection for architectural design is a great idea and
properly recognizes the value of architects’ creative work. Note, however, there
is no requirement that the work must be created by an architect to qualify for
copyright protection.
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AIArchitect This Week | Copyright or Copy Wrong? http://info.aia.org/aiarchitect/thisweek09/0925/0925p_copyright.cfm
One of the issues apparent to Congress and others at that time was just how
architectural a building design needed to be in order to qualify for copyright
protection. The definition of “architectural work,” as adopted, doesn’t suggest
any particular requirements for aesthetic, artistic, or poetic qualities. And, so far,
courts have not refused to recognize copyright in building designs due to a lack
of architectural quality. On the contrary, the bar has been set so low that any
building satisfies the “architectural” requirement if it is permanent, stationary, and
designed for human habitation or occupancy. One court has easily determined
that a parking garage is protectable simply because it is a “permanent structure
with a roof, and it encloses a space that is designed for a wide variety of human
activities.” Not surprisingly, court cases alleging infringement frequently involve
parties who produce speculative single-family houses or modular homes.
Another issue courts have not yet resolved is just how large a portion of an
architectural work can be copied without risking infringement. (Think of
republishing a single chapter of a book without the author’s permission.) One
court has indicated that copyright protection exists “not only in the architectural
work taken as a whole . . . but also in protectable portions of the work.” What
the phrase “protectable portions” means in practical terms is yet to be
determined.
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