Since 1990, the U.S. Copyright Act has provided two separate copyrights protecting (1) architectural plans of buildings, including all drawings, illustrations, sketches and models, and (2) the constructed building itself. Both of these copyrights exist from the moment of creation of the work and are owned by the person who created it. Here are some important features of these architectural copyrights:
- Copyright protection does not apply to common or standard elements in a design or to purely functional elements. For example, the location of the kitchen adjacent to the dining room would not be protected. However, the use of a domed ceiling in the kitchen adjacent to a pyramidal ceiling in the dining room could be protected as an original nonfunctional design element.
- The copyrights can be transferred (“assigned”) in a written document signed by the copyright holder. In the absence of a written assignment, a copyright holder may grant limited rights to use a copyrighted work by engaging in a course of conduct that shows the holder’s intent to allow the use. Contract documents should always address the ownership of the two separate copyrights in the architectural drawings and the constructed building to make sure that the correct rights are assigned and to prevent the occurrence of unintended licenses.
- Registering a copyright in building designs and constructed buildings with the U.S. Copyright Office can provide important protections to the copyright holder. The most important advantage in many cases is the ability to claim “statutory damages” in the event of infringement. If the copyright was registered before the infringement occurred, the court may award damages of up to $30,000 per work infringed without proof of any actual harm or economic loss to the plaintiff copyright holder. If the infringement is proved to be willful, the maximum statutory damages award increases to $150,000.
- Copyright holders who register their copyrights before infringement occurs may be able to recover attorney’s fees in a lawsuit for infringement if the copying is obvious and substantial, even if the legal fees are significantly greater than the damages.
- Registration of the copyrights in architectural drawings and plans and constructed buildings with the U.S Copyright Office is not complicated and can be done online. The claimant must file an application, pay a fee (usually $35 or $55 for most applications), and give the Copyright Office copies of the drawings or, for constructed buildings, photographs of the protected design elements of the building.
So if you design buildings or are a design/builder and you have plans or constructed buildings that you want to protect with a claim of copyright, consider registering your work with the Copyright Office. More information can be found at http://copyright.gov/eco.
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