Copyright in architecture is an important, but little understood subject in the architectural discipline. Copyright is a legal concept that gives the creator of a work the exclusive right to use that work for a limited time. These rights can be an important mechanism through which architects can protect their designs.
History of copyright in architecture
Architecture has not always been covered by copyright law. In 1790, when the first copyright law was passed, copyright was only granted in "books, maps, and charts".Copyright Act of 1790 In 1909, Congress broadened the scope of copyright protection to include all "writings of an author".Copyright Act of 1909 Although architectural drawings were not expressly included in the 1909 Act, copyright protection was included under the act for "[d]rawings or plastic works of a scientific or technical nature". Courts generally interpreted this provision to include an architectural blueprint.Imperial Homes Corp. v. Lamont, 458 F.2d 895, 898 (5th Cir. 1972); DeSilva Constr. Corp. v. Herald, 213 F. Supp. 184, 193 (M.D. Fla. 1962). It was not until 1976 that Congress expressly stated its intent to include "an architect's plans and drawings", which were included under the protection of "pictorial, graphic, and sculptural works".H.R. Rep. No. 1476, at 55 (1976) However, such protection was qualified in that "the extent to which protection would extend to the structure depicted would depend on circumstances". As a result, under the 1976 Act, most courts held that even this grant of coverage to an architect's plans and drawings did not protect an architect's right to build structures depicted in the drawings.Richmond Homes Mgmt., Inc. v. Raintree, 682 F. Supp. 1517, 1525 (W.D. Va. 1994 Courts generally held that both the utilitarian doctrine prohibiting copyright in useful articles and the idea-expression dichotomy prohibiting copyright in ideas barred protection of buildings designed from architectural plans.See., e.g., Robert R. Jones Assocs. v. Niro Homes, 858 F.2d 274, 279 (6th Cir. 1988); Acorn Structures, Inc. v. Swantz, 657 F. Supp. 70, 75 (W.D.Va. 1987).
In 1989, the United States joined the Berne Convention for the Protection of Literary and Artistic Works, which required that its signatories protect completed architectural works from infringement. As a result of both this convention and a recognition by Congress that "architecture is an art form that performs a very public, societal purpose . . . deserving of protection under the Copyright Act", Congress passed the Architectural Works Copyright Protection Act (AWCPA) in 1990, which amended the Copyright Act to specifically include "architectural works" among the list of protected works in .H.R. Rep. No. 735, at 6936 (1990)
Rights granted to architects by copyright law
Copyright in architectural works is established under 17 U.S.C. § 102(a)(8).17 U.S.C. Moreover, protection of pictorial, graphic, and sculptural works is established under (a)(5).17 U.S.C. Thus, architects can receive two levels of protection for their works: one for the design of a building as embodied in buildings, architectural plans, or drawings under § 102(a)(8) and one for diagrams, models, and technical drawings themselves under § 102(a)(5).
Copyright in a design, whether registered under § 102(a)(5) or § 102(a)(8), generally gives an architect the exclusive right to reproduce, distribute, display, and prepare a work based upon the design.17 U.S.C. This protection, unless the work is a work-made-for-hire, lasts for the life of the author plus 70 years.17 U.S.C. However, several limitations on those rights apply depending upon which section the work is registered under. The most significant limitation to registering a design as a "pictorial, graphic, or sculptural" work under § 102(a)(5) is that the copyright owner cannot prevent the construction of a building based upon the registered design.Oravec v. Sunny Isles Luxury Ventures, 469 F. Supp. 2d 1148, 1162 (S.D. Fla. 2006). In contrast, while construction of a building can be prevented under § 102(a)(8), two other important limitations apply when registering a design as an "architectural work". First, when a building is ordinarily visible from a public place, its protection as an "architectural work" does not include the right to prevent the making, distributing, or public display of pictures, photographs, or other pictorial representations of the work.17 U.S.C. Thus, the architect will not be able to prevent people from taking photographs or otherwise producing pictorial representations of the building. Second, owners of a copyrighted building may both make or authorize the making of alterations to the building and destroy or authorize destruction of the building.17 U.S.C. Thus, the architect will not have the right to prevent the owner of a house that they designed from altering or destroying the building. This exception also allows owners of partially complete buildings to complete the building using construction plans created by the architect.See Javelin Invs v. McGinnis, No. H-05-3379, 2007 WL 781190, at *6-8 (S.D. Tex. Jan. 23, 2007).
An architect is not strictly limited to the set of rights granted in the Copyright Act, as the architect may contract for greater rights.See Hearing before the H. Comm. on the Judiciary, 101st Cong. (1990); Javelin Invs, 2007 WL 781190, at *6.
Types of architectural works protected by copyright law
Copyright protection can be extended to general drawings and blueprints, preliminary plans, sections, elevations, floor plans, construction plans, rough models, models of internal support, models of external appearance, photomontages of the building against backdrops, computer-generated images of a design, and constructed buildings.See, e.g., Shine, 382 F. Supp. 2d 602, 602 (S.D.N.Y. 2005); Oravec, 469 F. Supp. 2d at 1148; Javelin Invs., 2007 WL 781190, at *1 The designs embodied in any of these types of works need not be capable of construction to be protected.Shine v. Childs, 382 F. Supp. 2d at 608; See also Sparaco v. Lawler, Matusky & Skelly Eng'rs, 303 F.3d 460, 469 (2d Cir. 2002); Attia v. Soc'y of the N.Y. Hosp., 201 F.3d 50, 57 (2d Cir. 1999).
In order to obtain protection as an "architectural work" under (a)(8), as opposed to a "pictorial, graphic, or sculptural work" under (a)(5), the work must include a design of a building. "Buildings" are defined in the Copyright Office as "humanly habitable structures that are intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, gazebos, and garden pavilions".37 CFR § 202.11(b)(2) Specifically prohibited from protection are "structures other than buildings, such as bridges, cloverleafs, dams, walkways, tents, recreational vehicles, mobile homes, and boats".37 CFR § 202.11(d)(1)
Requirements for copyright protection in an architectural design Time of creation
Protection for "architectural works" under § 102(a)(8) is available generally only for those works created on or after December 1, 1990.See Zitz, Inc. v. Pereira, 232 F.3d 290 (2d Cir. 2000). This means that a building cannot have been substantially completed before December 1, 1990, nor can a work have been published before that date. However, if the work was unconstructed and embodied in unpublished plans or drawings before that date, it might still be protectable. Protection for architectural drawings as "pictorial, graphic, or sculptural" works under § 102(a)(5) is valid if created after 1976.
An architectural work is eligible for copyright protection only if:
The architectural work was created on or after December 1, 1990, or
The architectural work was created before December 1, 1990, and
The architectural work was, on December 1, 1990, unconstructed and embodied in unpublished plans and/or drawings, and
The architectural work was constructed between December 1, 1990, and December 31, 2002, inclusive.
Registration and notice
A design has copyright protection automatically beginning at the time of creation.17 U.S.C. Thus, an architect need not register a work nor place notice on the work to obtain copyright protection.17 U.S.C. ; 17 U.S.C.
Despite the fact that a design does not have to be registered to be protectable, registration is beneficial for several reasons: (1) registration is necessary before an infringement suit can be brought in court; (2) registration within three months of publication or prior to infringement of the work will allow statutory damages and attorney's fees to be collected upon a finding of infringement, whereas otherwise, only an award of actual damages and profits is available; and (3) if registration is made within five years of publication, it will constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.17 U.S.C. ; 17 U.S.C.
Likewise, while notice is not required to be placed on an architectural design, doing so can be advantageous for a couple of reasons: (1) it can help avoid infringement of a work by putting people on notice of its copyright status; and (2) it prevents an infringer from getting a reduced damage award by arguing innocent infringement.17 U.S.C. A proper notice consists of: (1) the symbol ©, or the word "Copyright", or the abbreviation "Copr."; and (2) the year of first publication of the work; and (3) the name of the owner of copyright in the work.
Originality
Protection of an "architectural work" 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".17 U.S.C. According to the Congressional Report from the 1990 bill, this span of coverage "recognizes that: (1) creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectible elements into an original, protectable whole; (2) an architect may incorporate new, protectable design elements into otherwise standard, unprotectible building features [and still maintain protection]; and (3) interior architecture may be protected."H.R. Rep. No. 735, at 6949 (1990)