It is a common misperception that you cannot copyright a building design. That is probably because, before 1990, there wasn’t much protection for building designs. At that time, anyone could reproduce buildings that looked identical to those created by others, as long as they didn’t actually use copied drawings to build them. With the passage of the Architectural Works Copyright Protection Act in 1990, architects got a much greater level of protection, being able to register completed buildings as well as drawings.
According to the Act,”[The design of a building as embodied in any tangible medium 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 does not include individual standard features.” Protection extends to the overall form as well as the arrangement and composition of spaces and elements in the design but does not include individual standard features or design elements that are functionally required.
The following building designs can be considered for registration:
- Designs created on or after December 1, 1990
- Designs that were created in unpublished plans or drawings but not constructed as of December 1, 1990, but were constructed before January 1, 2003
The following building designs cannot be registered:
- Designs that were constructed, or whose plans or drawings were published, before December 1, 1990
- Designs that were unconstructed and created in unpublished plans or drawings on December 1, 1990, and were not constructed on or before December 31, 2002
- Structures other than buildings, such as bridges, cloverleaves, dams, walkways, tents, recreational vehicles, mobile homes, and boats
- Standard configurations of spaces and individual standard features, such as windows, doors, and other staple building components, as well as functional elements whose design or placement is dictated by utilitarian concerns
If your design can avail itself of Copyright, that protection is automatic upon creation of the work. However, the same misconceptions that we see among visual artists also abound in the architecture world. For one, while most architects add a © notice to their architectural drawings, the © notice is not required and is not considered a ”registration.” You do have copyright in the work, but without registration with the Copyright Office, you will not receive certain benefits of copyright.
For example, if your work is registered with the Copyright Office prior to an infringement or within three months of its publication, you may be eligible to receive statutory damages and payment of your legal fees should you prevail. Statutory damages allow up to $30,000 per infringement or if the infringement is willful, up to $150,000. Alternatively, you can choose to receive “actual damages”, which may be greater as the copyright holder may be entitled to a percentage of the profits that the infringer received from the infringement. (Note that if you are not eligible to receive statutory damages, you are still eligible to receive actual damages although attorneys fees are only awarded in limited circumstances). With the high prices afforded building or new home sales, statutory damages may be lower than the profit percentage. However, with those higher monetary awards may also come higher legal fees, which will be paid for if the work is registered. Of course, every case is different, but since registration fees are a mere $35, there is little downside. (For more on benefits of registration, see this article)
If your work is registered with the Copyright Office prior to an infringement or within three months of its publication, you may be eligible to receive statutory damages.
Another misconception involves copyright ownership. Many clients of custom buildings believe that since they paid for the plans, they are the copyright holder. This is not necessarily true. Copyright generally remains with the creator. However, under certain circumstances, copyright may not be held by the work’s creator. This concept is known as a “work made for hire.” For example, copyright in an employee’s work created within the scope of his or her employment is generally held by the employer, not the employee. On the other hand, an independent contractor generally holds the copyright in his or her work, while the hiring company, such as an architectural firm, only receives a license to use the work. However, for certain categories of work where there is a written agreement, the employer may hold the copyright, not the independent contractor. (For details on “work made for hire” requirements, see this circular provided by the U.S Copyright Office.)
Copyright protection can lead to large damage awards for the copyright holder. Several years ago, the U.S. Court of Appeals for the Fifth Circuit upheld a $3.2 million award for Kipp Flores Architects, a residential design firm in Austin TX against Hallmark Design Homes. The ruling is “one of the largest awards on record in an architectural copyright dispute,” according to a Kipp Flores press release.
In another Texas case, a federal district court in Houston awarded Hewlett Custom Design Homes $1.3 million against Frontier Custom Builders. Frontier constructed and marketed 19 houses of Hewlett’s copyrighted designs. That award was based on the profits Frontier earned from the sale of the 19 houses. The court also ordered Frontier to destroy the infringing materials in the firm’s possession.
Unfortunately, proving infringement isn’t always easy, and can be a long-drawn-out affair. In an important 2008 Florida case, Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., the Court of Appeals for the Eleventh Circuit agreed with the lower district court that the two designs seen below were not “substantially similar” and therefore not infringing. According to the court, “When courts have dealt with copyright infringement claims involving creative types of works, “substantial similarity” has been defined as existing “where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” How the court came to its conclusion that the Canterbury home was not infringing illustrates the difficulties in architectural infringement cases.
First, while Intervest was suing over its copyright in the “architectural work;” the design of the building, the court’s analysis did not include any elevations or section drawing of the building, or any three-dimensional architectural illustration. The court’s evaluation was based solely on their floor plans.
Second, the court stated that “the definition of an architectural work closely parallels that of a “compilation” under the statute, that is: “[A] work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” To understand the idea of a compilation, think about an anthology of the year’s best short stories. There is a copyright in the book as a whole, but the author does not hold copyright in the short stories themselves, which are written by multiple individuals, each of which has copyright for their story. Unfortunately, compilations are the lowest on the hierarchy of copyright protection. The court in Intervest explained it this way: “An example of a compilation is [the floor plans at issue in this case.] The [Copyright] Act has created a hierarchy in terms of the protection afforded to these different types of copyrights. A creative work is entitled to the most protection, followed by a derivative work, and finally by a compilation. This is why the Feist Court emphasized that the copyright protection in a factual compilation is “thin.”
Not every court will agree with the idea that architectural floor plans are compilations, which makes developing tactics for an infringement case difficult. The takeaway for architects looking to use copyright to protect their designs is that while copyright protection is available and there are distinct benefits to registration with the Copyright Office, dealing with an infringement can be tricky. Should you find yourself the victim of an infringement, it is best to consult an intellectual property attorney before taking any kind of action.
I think it might be worth emphasizing that the copyright of architectural designs only covers selling or licensing of the plans and constructing buildings based on those plans, although there are perhaps a very small number of exceptions for buildings that have been formally designated works of art (perhaps you could clarify?).
I once had an experienced architect and member of the AIA try to claim that I needed his permission to license my photographs of a home he designed to the owners of the home for their own commercial use.
Actually, the building do have copyright in their look, it is just that there is an exception for photographing building in public places. If it is publicly viewable, then it is likely not an infringement. But if the home or other architectural building is not publicly viewable, let’s say it is deep in the woods on private property, then you may have a problem (assuming you aren’t also trespassing). But this only applies to buildings built after 1990.
Steve, yes, I remember that language. However, what about a remote and secluded building that is viewable from the air or some other elevated perspective not on or over the subject property? It seems to me that the only way that could apply is if a building were completely enclosed within another structure or had an absurdly high wall around it.
That isn’t necessarily true. I haven’t researched the cases so I cant say for sure, however, the statute says “The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.” While a high powered lens from a hill shouldn’t be a problem, (assuming you are not trespassing), a helicopter shot might not fall into the definition of “ordinarily visible from a public place.” As almost every architectural structure is viewable from the air, there would be no point in adding that phrase So a secluded home in the middle of the woods, not visible except from the air, might be protected if it was built after 1990 etc.
A picture might not fall into the definition of “ordinarily visible from a public place.” But…the converse is that theoretically, anyone can get on an aircraft and take a photo. That would seem rather ordinary enough. Particularly with the amount of air travel today, it would be rather ordinary. I took a trip on a train a few months ago and I had my video camera pointed outside and recording both out and back. I have also seen video posted by passengers of aircraft. My humble opinion would be that it would be a very, very, difficult to prove that it is not “ordinarily visible from a public place,” unless, the airspace from which the photo was taken was “not public,” such as restricted or prohibited airspace.
I am an architect. A local photographer has taken many pictures of several of my residential building designs, primarily for real estate companies for marketing purposes. They are quite good photographs. I am not upset about it but I would like to use his photographs for my website. I designed all of my projects after 1990 and I did copyright the designs on the plans and schematics as well as in the contracts I had with my clients. It is kind of a grey area because he took pictures of my designs without getting my permission and I feel odd asking him permission to use his photographs of my designs. I have no idea if I would need his permission and I feel a bit uncomfortable just posting his pictures on my website. I would be willing to give him credit for the photographs and providing a link back to his website. I also don’t know if the owners could take issue since pictures of the house are all over the web in their attempt to sell their homes that I designed for them. I would greatly appreciate any thoughts you may have with regards to this. It seems a bit perplexing.
Robert:
Yes, it is a little counter-intuitive. But his pictures have their own copyright, and you would need his permission to use them. And since you building are in a public space, he would have the opportunity to take images. Think about it from the perspective of real estate photographers taking pics of neighborhoods. They don’t need permission. If you do ask the photographer to use the photos, make sure he supplies a licensing agreement with the terms of use, such as whether you have the perpetual use, or a limited time, and what you are using the photos for. That way there is no miscommunication that may haunt you later.
Thanks a bunch Steve! I really appreciate your time, insight and advice on the matter.
What about the massive amounts of “inspiration” images interior designers use to persuade clients? These images are not of their work and are mostly found on the internet. Then they give these images to the architect with the expectation that the architect will use these images to complete the interior elevations. This appears to be an ever increasing issue which has resulted in the client believing that the architect is not a “team player” when they refuse to design in such a shallow manner. Is this legal for them to use these images for profit? This is the only medium they use to convey how a space will look… besides maybe a sketch or two over the architects drawings and renderings. Are they even allowed to sketch over the architects drawings and renderings in an effort to persuade the owner to change the design. Is it legal for the architect to take these images and use them? When do you cross the line between inspiration and copyright infringement?
Where the line is drawn between inspiration and copying is a tough one, usually done on a case by case basis. It will end up being a fair use argument. Basically how much of the original works has been transformed for a new audience. I have a bunch of articles on fair use here, plus, download the free ebook which has a section on fair use. But I would think that ultimately the architect doesn’t match the interiors perfectly and makes his or her own creative choices. As well, I would imagine that certain choices are consequences of other choices. Maybe a bathroom goes in one place because the kitchen is next to it or something. I am just assuming here. But if the house exterior and interior layout are unique, and copied such that it is obvious that it is a copy, then it is can be an infringement.
As far as the images themselves, they would probably be considered personal use and ok to us in that manner, much like recording a movie for personal use isn’t an infringement. But showing it to the patrons at a bar would be an infringement.
One last point, if you end up having to use someone else’s work as a baseline and are unsure whether the new structure would qualify as fair use, and the buyer is insistent on using the design, make sure the contract has an indemnification clause. The client should take responsibility. If you are sued for copyright infringement, then the client will pay for the legal fees and any other judgements. That way the client has some skin in the game.
Hi Steve I’m a home owner and builder ,I designed my own floor plan in I hire a draftsman to finish it on his cadd program, he took 5 months to finish, and at the same time he copy and made litter changes and resold it to another home owner who was building 5 blocks away on the same street, both houses are at the same stage,this houses are worth about 800000,I created my own design and this draftsman sold it to another customer of his, I talk to the other home owner and he is very sad, he paid to the draftsman 8500 what can we do agains this draftsman
Is it illegal at a Game design standpoint to use real life floor plans for the game models?
It really depends on the plans, but I would argue that it isn’t just the plans but the look of the building within the plans. It really depends on the plans and then what you did with them. There might be a good fair use argument but without analyzing it all, I couldn’t be sure.
Would taking senior photos with wall murals as a background be considered copyright infringment?
It depends on what the focus of the image is, how much of the mural is being used, and what it is being used for. See this article. https://artrepreneur.com/american-eagle-rip-miami-street-art/
Hi Steve, I’m an architectural color and exterior architectural design consultant. just so you know, I have many color compilations copyrighted. I recently went through an arduous approval process with my HOA getting my personal residence updated with color and new materials outside of the mandated pallet. In addition to my update a neighbor hired me to provide custom color and design with construction oversight to her property as well. With that said, our homeowners association has now hired an outside consultant and is asking that consultant to incorporate my compilations and design into our master planned pallet for all homeowners to use in our community. Do I have any rights in this situation?
Sorry for the delayed response here. I would need to really see it all be sure in this particular case, but if you have registered work and it is being used without your permission, then you have rights, regardless of whether you had even shown them to the HOA. Copyright registrations can do wonders in a case like this. If you want to discuss this further, use the contact button in the footer and direct your message directly to me.
Thanks for sharing useful information. We are an architectural firm and the guide really helped us a lot.