Many architects and architectural firms fail to take even the simple steps available to them to secure and enforce the valuable intellectual property rights they own in architectural works. However, architects should take stock in their intellectual property assets and ensure that they are taking the necessary steps to put themselves in a position to maximize those assets.
The Copyright Act Protects Architectural Works
In 1990, Congress significantly enhanced the Copyright Act specifically as it relates to architects. The Copyright Act formally recognized "architectural works" as works subject to copyright protection. An "architectural work" is defined by the Architectural Works Copyright Protection Act ("AWCPA") 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." 17 U.S.C. §101.
As a practical matter, what this means is that almost all architectural works, including structures, are subject to copyright protection even if the structures contain a plethora of well-known design elements. As explained by one court, "Creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectable elements into an original, protectable whole . . . " T-Peg, Inc. v. Vt. Timber Works, Inc. 459 F.3d 97, 110 (1st Cir. 2006).
In sum, architectural firms must take stock in their plans and structures as being valuable assets that can be protected and potentially monetized under the provisions of the copyright laws.
What Needs to be Done to Protect and Enforce Architectural Copyrights?
While, as a matter of copyright law, the copyright in an architectural work vests upon its fixation in a tangible medium (like plans), as a practical matter, copyrights are only enforceable and are of significant value only if an appropriate copyright registration is secured. The process for obtaining a copyright registration is a fairly simple and inexpensive. The consequences of not doing so in a timely fashion, however, can be quite costly. The importance of a copyright registration is multi-faceted. The benefits include (1) if the registration is obtained prior to the time at which infringing conduct begins, the copyright holder is able to recover in any lawsuit, its attorneys' fees as well as what are called "statutory damages." This is often a significant advantage in pursuing a copyright infringement claim; and (2) a copyright registration is in fact a necessary prerequisite before a lawsuit can even be filed. As such, while copyright vests at the moment of fixation, it cannot actually be enforced in court until a registration is obtained.
The Copyright Registration Process
In order to effectively enforce, protect and seek compensation for copyrights in architectural works, architectural firms need to register the works. Any designs created on or after December 1, 1990 and any designs that were created in unpublished plans or drawings but not constructed as of December 1, 1990, but were constructed before January 1, 2003 are eligible for copyright protection and thus are eligible for registration. Typically, the copyright registration process requires that a copy of the architectural drawings be submitted to the Copyright Office with an appropriate application. Additionally, photographs sufficient to illustrate the exterior and interior design elements of a structure should be submitted to the Copyright Office on the appropriate forms to secure copyright registration.
Once a proper copyright application is submitted, a registration will duly issue thereafter. As noted above, duly issued registrations assist significantly in an architectural firm's ability to enforce and ultimately monetize its copyrightable works.
Enforcement of Copyrights and Claims of Infringement
As noted above, the purpose of registering copyrights is to enhance the ability to enforce and monetize the copyrights. Specifically, only the copyright holder is permitted to engage in a variety of activities related to the copyrighted work. These exclusive rights include: (1) the right to reproduce the copyrighted work; (2) to prepare derivative works based on the copyrighted work; (3) to distribute copies of the copyrighted work to the public by sale or other transfer of ownership; and (4) to display the copyrighted work publicly.
As this relates specifically to architectural works, it effectively means that others may not copy architectural plans or build and copy copyrighted structures.
All architectural firms should take stock in their valuable intellectual property assets including the copyrights that are vested in them for the drawings and structures which represent their core work.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.