Copyright in Buildings for Architects and Artists

Copyright in Buildings

Generally, copyright protects all works of art including those which are related to a building design and to artwork fixed to buildings.  However, because copyrights do not extend to functional works, buildings were not always considered Copyrightable.  Currently, the law protects artwork for and on buildings under both traditional copyright law and in some cases as moral rights.

Copyright in Buildings

Architects and Designers of Buildings may have copyright protection for their creations

Traditional Copyrights

Traditionally copyright law provides artists with certain exclusive rights which means the artist retains the rights to their artworks, even if the artist sells a copy of the work or the original artwork.

For example, simply buying a painting or a book, does not give the buyer the right to reproduce the work. This would violate the artists’ rights and may be considered infringement.  Under traditional copyright law the artist has the following exclusive rights:

  1. Reproducing (i.e., make copies of) the work;
  2. Creating Derivative Works based on the work (i.e., to alter, remix, or build upon the work);
  3. Distribute Copies of the work;
  4. Publicly Display the work (in certain cases);
  5. Perform the work (in certain cases); and
  6. Digitally transmit the work, in the case of sound recordings.

Copyrights in Architectural Works

When it comes to copyright in buildings; however, these rights were uncertain prior to 1990.  In 1990, the copyright law for architectural works was changed to allow for copyright protection for buildings and other architectural works created on or after December 1, 1990.

The revised copyright law extended protection of copyright in buildings by allowing the architect, or other copyright owner,  prevent others from reproducing, create derivative works and distributing copies of the architectural work.  This includes the right to prohibit copying of the architectural drawings, and making copies for others to use, sell, or otherwise distribute. In other words, the owner of the copyright-protected architectural design drawings retains the rights of who can make copies of their drawings and for what purpose. As a result, unauthorized construction of a building based on the unauthorized copying of copyrighted designs may also be an act of infringement.

In addition to the right to reproduce the copyrighted work, the architect also has the exclusive right to prepare derivative works based on the copyrighted work, and to perform or display the work publicly. For an architectural work, a derivative work might include any photograph, painting, or other representation of either the design drawings or the building itself.

The law defines an architectural work as “the design of a building as embodied in any tangible medium of expression.”  However, because copyright in buildings does not extend to useful objects, there are certain limitations on the types of architectural works which are copyrightable.  The works must be permanent, habitable structure such as houses, office buildings, churches, museums, and even gazebos. These rights do not extend to purely functional, non-habitat structures like bridges, dams or for temporary structures like tents, mobile homes, recreational vehicles, and boats.  These copyrights in buildings do not extend to  standard space designs or configurations, such as windows, doors, and other staple building components, as well as functional elements whose design or placement is a function of use.

Moral Rights

Copyrights also protect the display or use of a work of visual art and generally allows an artist to prevent the intentional distortion, mutilation or other objectionable modification of their work.   The artists of visual work can also prevent the destruction of certain works of visual art, for example those attached to or painted on a building.  These rights were originally referred to as Moral rights and allowed an artist to control how or where his work could be displayed and if it could be destroyed.

This right was independent from the artists other rights.  However, the copyright law created an exception for removing works of art fixed to buildings. Under the exception, the owner of a building may alter, make repairs to the building or destroy the building and any permanently attached works of art which are part of the building, without having to risk liability to the authors of the attached works.

Specifically, the exclusive “moral” rights in a work of visual art do not apply, and the owner of a building will not be liable for removing a work of visual art, when the following two elements are satisfied:

  1. A work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion or mutilation of the work; and
  2. The author consented to the installation of the work in the building either before the effective date of VARA, or in a written instrument that is signed by the building owner and the author.

Additional information about copyrights can be found on the copyright section of our website.  If you have any questions about protecting your copyrights you can review information about copyright litigation or you can contact us to schedule an appointment with one of our attorneys.

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