Recently, The Island Packet reported that the architectural firm that designed the original residence halls at University of South Carolina Beaufort’s Hilton Head Gateway campus filed a lawsuit alleging the school and a local construction company violated its architectural copyrights on building designs when they built newer dorms in a similar style.
Architectural copyrights can be clear as dishwater, which makes analyzing a claim of infringement quite difficult.
Here are 7 things you need to know about architectural copyrights:
- BUILDING A SUBSTANTIALLY SIMILAR BUILDING WITHOUT PERMISSION MAY INFRINGE THE ARCHITECTURAL COPYRIGHT OWNER’S RIGHTS.
In 1990, Congress passed the Architectural Works Copyright Protection Act which explicitly provides copyright protection to original designs of architecture in virtually any form, including architectural plans, drawings, and unbelievably, buildings themselves.
In other words, a builder may be liable for copyright infringement if the building itself infringes another’s plans or building regardless of whether the plans themselves were copied. Builders, architects and owners should not attempt to copy or imitate other architectural works in any form.
- INNOCENCE IS NOT A DEFENSE TO COPYRIGHT INFRINGEMENT.
To win a copyright infringement lawsuit, a copyright owner does not have to show intent to copy or even actual copying. In fact, the copyright owner only needs to establish that the alleged infringer had access to the copyrighted work and the alleged infringing work is substantially similar to the copyrighted work.Builders, architects and owners may be liable for copyright infringement even if they did not intentionally copy a protected architectural work.
- CREATING MINOR ALTERATIONS TO ARCHITECTURAL PLANS DOES NOT NECESSARILY AVOID COPYRIGHT INFRINGEMENT.
Courts usually use one of two tests to determine whether an architectural work infringes a copyright owner’s original work. The purpose of each test is the same, namely, to determine whether the alleged infringing architectural work or building is “substantially similar” to the architectural copyrighted work.
The first test is often called the “total look and feel” test, as the works are compared in their entirety by “ordinary observers” to determine whether they are substantially similar. This is why creating minor alterations that do not change the total look and feel of the architectural copyrighted work may infringe the owner’s rights.
The second test is often called the “filtration” test. Here, the court removes the unoriginal portions of the work before examining the protect-able portions of the work to determine whether they are substantially similar.
The bottom line: merely changing simple functional features, such as windows, doors or other essential building components is not a defense to an architectural copyright infringement claim.
- COPYRIGHT INFRINGEMENT CARRIES THE RISK OF ENHANCED DAMAGES, ATTORNEYS’ FEES, AND COURT COSTS.
In some cases the copyright owner may be entitled to recover statutory damages, attorneys’ fees and court costs from an infringer.Statutory damages are brutal. With statutory damages the copyright owner does not have to prove the amount of actual damages it suffered as a result of the infringement. Instead, the court may award up to $150,000.00 per infringement!
That means a builder might be liable to an architectural copyright owner up to $150,000.00 for each building that infringes the architectural copyright owner’s rights. In addition to statutory damages, the court may require the infringer to pay court costs and the architectural copyright owner’s attorneys’ fees.
- ARCHITECTS AND DESIGNERS SHOULD TIMELY REGISTER THEIR COPYRIGHTS TO OBTAIN ENHANCED REMEDIES AGAINST POTENTIAL INFRINGERS.
As noted above, statutory damages and attorneys’ fees may be available to copyright owners who register their copyrights in a timely fashion.To receive these enhanced remedies, the owner’s copyrights must be registered before the infringement is commenced by the infringer or, in the case of published works, within three (3) months of the first publication of the architectural work.
Registering a copyright with the United States Copyright Office is simple and relatively inexpensive. For more information regarding copyright registration procedures, please give us a call.
- IF YOU RECEIVE PLANS FROM SOMEONE, MAKE SURE YOU HAVE THE RIGHT TO CONSTRUCT, COPY AND/OR MODIFY THOSE PLANS BEFORE USING THEM.
Owners often solicit designs from multiple architects or designers during the design and bid phases of a project. Owners may mistakenly believe they have the right to share designs obtained through a design/bidding process with other competitive bidders.
If the original designer retained all copyrights in the original design, an unsuspecting subsequent designer or contractor may infringe the copyrights of the original designer by altering the original plans or building a structure substantially similar to the original design.
If an owner, construction manager or anyone else provides you with architectural plans, you must make sure that you have the right to construct, copy and/or modify those plans before using them.
- IF YOU ACCEPT ARCHITECTURAL PLANS FROM SOMEONE, INSIST ON INDEMNIFICATION FOR ANY COPYRIGHT INFRINGEMENT ARISING FROM THOSE PLANS.
As noted above, there may be serious consequences when construction plans are shared. If you receive construction plans from someone and are asked to construct, modify or otherwise use those plans, you should require the party providing those plans indemnify you against copyright infringement claims that may arise from those plans.
The indemnification should be in writing and should include indemnification for any other forms of intellectual property or unfair competition claims that may arise from your use of those plans. A duty to defend any related litigation should also be considered.
Imitation may be the sincerest form of flattery, however, under architectural copyright law, imitation could be a very costly endeavor.