Attorneys Offer Tips for Avoiding Architectural Copyright Infringement

Attorneys Offer Tips for Avoiding Architectural Copyright Infringement

Sometimes ignorance is bliss, but when it comes to architectural copyright, what you don't know can hurt you.

So says Jordanna Smida, editor of K&BDN sister publication, Design/ Build Business, who attended a seminar on architectural copyright at the IBS in Las Vegas. Below, she offers advice from attorneys who shared their expertise on copyright law, outlined rights and responsibilities, and discussed how to avoid infringement traps at the seminar.

The Law
Louis Bonham, with Rosenthal & Osha, LLP, in Houston is one of the leading copyright attorneys in the country. His clients range from one-man architectural firms and small builders to international architectural firms and developers. Bonham has handled hundreds of architectural copyright disputes, including cases that have resulted in some of the largest judgments and settlements in this area of law.

Architectural copyright law has existed since 1990. However, Bonham says that, even with the laws, large judgments are garnering publicity, leading many builders to fall victim to copyright myths:

• Plans that don't have a copyright notice are not protected.
   
• Plans aren't protected unless they're registered with the copyright office.
   
• Only novel, unique or special designs are protected.
   
• Copyright only protects the actual plans, but doesn't forbid copying the building itself.
   
• If you take a work and change it, it becomes yours.
   
• If you didn't know the design was protected by copyright, you're protected.
   
• If the works aren't at least 70% similar, it's not copyright.
   
• If found guilty of infringement, your liability is limited to the reasonable value of the plans.
   
• The client owns the architectural copyright to the plans if he purchases them.

According to Bonham, every item listed above is a myth. "If you believe these to be true, you're putting yourself in jeopardy You can get burned badly if you don't know what you're doing," he warns.

While Bonham hears from people quite often that everyone in the industry copies everyone else, he says it's no longer legal to do. "For a long time that was fine, until the laws changed," he explains.

In 1990 Congress officially instituted the Architectural Works Copyright Protection Act of 1990 (AWCPA) into law. One of the issues the law raises is what constitutes an architectural work. According to the law, Bonham says the statute defines it as the design of a building as by any tangible medium of expression, such as plans, buildings or sketches. "If you build an infringible house, that's treated as an infringement," he notes.

Works including bridges, cul de sacs and parking lots are not encompassed, but buildings including gazebos, apartments, homes and churches are protected by the act.

A work's overall form and individual arrangements and combinations are also protected under this act. "It doesn't include individual standard features like a 32"-wide door. But how you combine the features can be protected under copyright," he notes.

Protection limits
There are certain limitations under the act as to what is actually protected. The main limitation to note is that only works that were created and first constructed after Dec. 1, 1990 are copyright protected under AWCPA.

"You can copy Frank Lloyd Wright, as long as you don't copy his plans directly," Bonham stresses.

It's also important to know that copyright protects an expression, not an idea. "If you have a particular idea of a home, the idea isn't protected. It only becomes protected once you build it or put it down on paper. This protects against copying. Someone can't copy your expression. If someone comes up with it independently, they're okay," he explains.

The term of copyright exists for the life of the owner plus 70 years. Bonham points out that, by the time a copyright expires, the industry should be moving on to better designs and buildings. "For all intents and purposes, copyright in architecture is permanent," he reports.

Copyrights
Having or obtaining copyright gives you certain exclusive rights, according to Bonham: