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SEPTEMBER 25, 2009

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Copyright or Copy Wrong? PRACTICE
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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.

Service” as property To request a copy of this article that


It is a commonplace includes supporting citations or to
concept that the architect’s ask a copyright question that could
drawings and specifications be discussed in a future article in this
series, send an e-mail to
are intellectual property.
ghancks@aia.org.
The earliest owner/architect
agreements published by As associate general counsel,
Gregory Hancks, AIA, assists the
the AIA more than 80 years
general counsel in legal matters
ago described these affecting the Institute, including
documents as “instruments corporate governance, contracts,
of service” and gave the and intellectual property. He also
architect control over their serves as counsel to the AIA’s
National Ethics Council. He is the
use:
author of the article on “Construction
Contracts” in the 14th edition of The
Ownership of Documents—Drawings and specifications as
Architect’s Handbook of Professional
instruments of service are the property of the Architect whether the Practice, published in 2008.
work for which they are made be executed or not.

Why the AIA decided to use “instruments of service” terminology instead of


“copyright” to describe the property interest in architectural drawings may be lost
to history. By that time, architectural drawings were protectable by the federal
Copyright Act of 1909, which explicitly covered drawings of a “technical
character.” (The 1909 copyright statute was replaced entirely by the Copyright
Act of 1976, which, with various amendments, remains in effect today.)

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.

The right to use as-built drawings

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AIArchitect This Week | Copyright or Copy Wrong? http://info.aia.org/aiarchitect/thisweek09/0925/0925p_copyright.cfm

It is common for an owner to want to use an existing set of drawings for


renovating the same building. Here the architect’s copyright in the construction
drawings (including as-built or record drawings) runs head-on into an expectation
by some owners that the drawings can be provided to another architect to
create a set of base drawings of the existing building. Whether, under copyright
law, a building owner can legally do this without the first architect’s consent isn’t
clear. Some courts that have touched on this issue have been skeptical of
copyright protection for drawings that simply show existing conditions.

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.

Copyright protection for architectural design


Historically, although architects could prevent reproduction of their drawings
under copyright law, that didn’t prevent anyone from looking at the building
constructed from those drawings and then replicating the design in new drawings
or in another building. Anyone with the technical expertise who had sufficient
access to a building could construct a carbon copy without infringing on any
copyright. With the possible exception of ornamental features that might be
considered “sculpture,” any or all of a building’s feature’s could be copied. In
1990, that changed.

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:

the design of a building as embodied in any tangible medium of expression,


including a building, architectural plans, or drawings. The work includes the
overall form as well as the arrangement and composition of spaces and
elements in the design, but does not include individual standard features.

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.

It is probably too soon, in any event, to determine AWCPA’s ultimate effect on


the profession because the practical details get worked out only as courts
interpret and apply the law in actual cases in which infringement is claimed. In
this context, the 19-year period since the statute was enacted is not a very long
time.

Which side are you on?

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AIArchitect This Week | Copyright or Copy Wrong? http://info.aia.org/aiarchitect/thisweek09/0925/0925p_copyright.cfm

It also should be noted that the majority of


“architectural works” that you encounter are
the copyright property of someone else—not
your own. You are therefore at risk of
infringing on someone else’s copyright when
you solve a design problem by too closely
replicating post-1990 work that you have
seen in person, in photographs, or otherwise.
Twenty years ago, the AIA did not support
adding copyright protection for architectural
design. In its comments to Congress prior to adoption of the 1990 statute, the
AIA stated that the new law would do more harm than good, although the AIA
did support adding a “right of execution” to copyrighted architectural drawings.

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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