Copyrighting Architectural Works

The owner of a copyright has several exclusive rights to the copyrighted work, including the exclusive right to prepare derivative works from the original, the right to make or distribute copies, and the right to publish the work. A violation of the copyright owner’s exclusive rights constitutes an infringement entitling the owner to injunctive relief to stop the infringement and to monetary damages. Under the Architectural Works Copyright Protection Act of 1990, a design professional may invoke copyright remedies not only for a “copycat building” but also for other unauthorized uses of the protected design.

Architectural Works

The 1990 Act defines “architectural work” 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 it does not include individual standard features. Under the 1990 Act, a “building” encompasses habitable structures as well as structures that are used but not inhabited by human beings. Interior design is included in the definition of “building.” Bridges, cloverleafs, dams, highways or walkways are not “buildings” under the definition of architectural works.

Two Separate Copyrights

The 1990 Act enhances rather than supersedes prior copyright law. A design professional now has two separate copyrights in his or her work, one in the design embodied in the drawings or building as “architectural work” and the other in the drawings themselves, as “graphic” or “pictorial” works.

Two-Step Copyrightability Analysis

The copyrightability of a given architectural work involves a two-step analysis: (1) determine whether original design elements are present, including the overall shape and interior architecture and (2) determine whether such design elements are functionally required. If none of the design elements are functionally required, the work is protectable. If functional considerations determine only particular design elements, separate protection will be afforded for the nonfunctionally determined elements. Original combinations of standard features may be protectable even if the particular features themselves are not original.

Limitations on Exclusive Rights

There are two limitations on the exclusive rights of owners of copyrights in architectural works. First, the “public place” limitation permits the unauthorized publication of pictures or other pictorial representations of buildings located in or visible from a public place. Second, the “building owners” limitation permits a building owner to alter or destroy the building without the copyright owner’s consent. These limitations acknowledge the need to protect authors of architectural works while recognizing architecture as a public art form and real estate investment as an important component of the economy. The 1990 Act also expressly permits the enforcement of state and local zoning, building, landmark, and historic preservation codes that might otherwise impinge on a copyright owner’s exclusive rights in architectural works.

Infringement

Although traditional copyright law prohibits copying for publication, limited copying and distribution of construction documents for permit or bid purposes does not constitute an infringement. Copying the architectural work by duplicating the original drawing or constructing a duplicate building from the original drawing or from the original building are examples of infringement. If direct copying cannot be proven, it may be inferred where the copyright owner proves that the infringer had access to the original work and substantial similarities exist between the original and the copy. A perfect replica is not required, nor is expert testimony. The test is whether or not the average lay observer would recognize that the copy was appropriated from the original work. For a strikingly similar copy, access is presumed.

Federal Courts have Exclusive Jurisdiction in Infringement Actions

The federal courts have exclusive jurisdiction to determine copyright infringement.

Registration of Architectural Works
Registration of the architectural work with the U.S. Copyright Office is not required for copyright protection, but it is a prerequisite to filing an infringement lawsuit. If the copyright is not registered before the act of infringement, the damages recoverable are limited to actual damages suffered by the copyright owner plus profits derived by the infringer. If the copyright is registered before the infringement occurs, the copyright owner may elect to recover statutory damages and is also entitled to recover his or her attorney’s fees.

Copyright Notice

Copyright notice, while no longer a prerequisite for protection, is necessary to preclude the defense of “innocent infringement.” If an infringer proves reliance on lack of copyright notice on the work, statutory damages and attorney’s fees are not recoverable, but the infringer is still subject to injunction and is liable for actual profits derived from the infringement.

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