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Who Owns the Plans: Copyright Protection for Architectural Designs

by | Jan 31, 2020 | Commercial Real Estate, Firm News

The intellectual property of architects is entitled to copyright protection under the Architectural Works Copyright Protection Plan (AWCPA), enacted by Congress in 1990. The crux of the law is two-fold. First, although architects cannot copyright an idea, an original, tangible expression of that idea (such as in the form of blueprints) may be subject to protection. Second, while certain elements of architectural design are so common or standard that they cannot be copyright protected, an architect’s original combination or arrangement of such elements may be. Whether you have a claim for copyright infringement will depend on whether you can show that your design is entitled to protection and whether the allegedly infringing work is “substantially similar” to yours.

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How is “Architectural Work” Defined

The AWCPA defines an architectural work as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings” and 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” such as common windows, doors, and other staple building components. In other words, although individual standard features and architectural elements classifiable as ideas or concepts — as opposed to tangible expressions of those ideas or concepts — are not themselves copyrightable, an architect’s original combination or arrangement of such elements may be. Courts have stated that infringement can be “based on original selection and arrangement of unprotected elements.”

Copyright infringement cases are heard in the federal courts. Cases in which courts concluded that architectural work was entitled to copyright protection include:

  • Florida case in which design for high-rise building that employed the convex/concave shape in a distinctive fashion, especially when viewed in relation to the other aspects of the design, like the use of exterior elevator towers and the particular manner of stacking the floors, exhibited enough originality and substantive expression to satisfy the requirement for copyright protection.
  • Minnesota case in which real estate developer’s architectural plans and drawings for one-story office showroom were sufficiently original to be copyrightable because they contained original features not demanded by the uniqueness of the building site, and accommodation of contractual standards in plans was a product of the developer’s creativity.
  • Ohio case in which engineer used creativity to determine how to satisfy permit requirements
  • Virginia case in which original form of arrangement of elements in design for hotel restoration was distinguishable from pre-existing hotel design in a “meaningful way”

As these and other cases show, the key to obtaining copyright protection is where the architect has independently created the works and they reflect creativity, regardless of how simple the design. That is, if the design is sufficiently original, copyright protection is not precluded just because the design is also utilitarian. This is because architectural works are by definition at least partly designed to serve a “useful function.” Courts have noted that the level of originality required for copyright protection is not high. All that is needed is that the author “contributed something more than a merely trivial variation, something recognizably his or her own. Originality in this context means little more than a prohibition of actual copying.”

How to Prove Copyright Infringement

To prove copyright infringement, an architect must show:

  • Ownership of a valid copyright
  • Copying by the defendant of the protected elements of the copyrighted work, that is, the original elements

Because, as courts have noted, direct evidence of copying is not available in most cases, copying may be shown by demonstrating that the defendant had access to the copyrighted work and that the two works are “substantially similar.” Both elements must be established. Courts have concluded that the defendant had access when, for example:

  • The parties engaged in a close business relationship with an “open-door policy”
  • There was overlap of employees between the two architectural firms

When are Designs Considered to be Substantially Similar

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“Substantial similarity” is one of the most difficult determinations in copyright law. That architecture represents a hybrid of functional and creative or artistic elements further complicates the analysis. In deciding whether an architectural work has been infringed, the court will conduct a two-part inquiry: the allegedly infringing work must be both objectively similar (the “extrinsic test”) and subjectively similar (the “intrinsic test”) to the copyrighted work. The extrinsic test is an objective measure of whether the two works share clear, specific similarities. The intrinsic test, which is to be determined by a jury, focuses on, as courts have pointed out, “whether the ordinary, reasonable audience” would find the works substantially similar in the “total concept and feel of the works.”

“After first determining whether the allegedly similar features are protected by copyright, often with the assistance of expert testimony, the court will then decide the scope of the copyright. This process of what is referred to as “analytical dissection of a work” will result in an assessment by the court as to whether the work is entitled to “broad” protection or “thin” protection.”

The Extrinsic Test: Broad or Thin Protection?

After first determining whether the allegedly similar features are protected by copyright, often with the assistance of expert testimony, the court will then decide the scope of the copyright. This process of what is referred to as “analytical dissection of a work” will result in an assessment by the court as to whether the work is entitled to “broad” protection or “thin” protection. Generally, architectural designs are only entitled to thin, or limited, protection, which only protects the work against “virtually identical copying.”

A Word About the Merger and “Scenes-a-Faire” Doctrines of Copyright

Courts have stated that when an idea and its expression are indistinguishable, or “merged,” the expression will only be protected against nearly identical copying (meaning only “thin” or limited protection) Similarly, any design elements attributable to building codes, topography, structures that already exist on the construction site, or engineering necessity should therefore get no protection.

The related doctrine of scenes-a-faire relates to standard or stock elements and provides that when similar features in the copyrighted item are, as a practical matter, indispensable, or at least standard, in the treatment of a given idea, they are not protected by copyright.

Do I Have to Register My Plans Before I Can Claim Infringement?

The short answer is no. Your work should at least include a copyright notice or indication of ownership of the plans or the copyright. That said, if you register your plans with the US Copyright Office before claiming infringement, you may be entitled to collect attorneys’ fees, in addition to other damages, should you succeed on your claim. Once you claim infringement, you will have to register your plans in order to proceed with your court case. Keep in mind that the registration process does not take long or cost much ($35 at the time of this writing).

How I can help

If you need assistance obtaining copyright protection for your architectural design, or you believe you may have a claim for copyright infringement, I welcome you to contact me at (509) 662-2452 or email H. Lee Lewis.