Copyright law gives design professionals tools to protect their expertise and secure payment for use of their intellectual property. However, the use of copyrights and the ability to enforce the protections provided by law can be confusing and difficult. Design firms should be protective of their creations and copyright law can prevent both the misuse of a design and the uncompensated repetition of the project by a client or others.
Plans and specifications are not “works made for hire”
Prior to the Copyright Revision Act of 1976, US law considered construction documents produced by design professionals as “works made for hire” and the copyright to them automatically vested in the party paying for their creation. That is why standard contracts refer to the plans and specifications as “instruments of professional service”—they were not products created for the client but merely communication tools documenting the results of the professional services for which the client paid. The 1976 law narrowed the “works made for hire” concept into nine categories; plans and specifications do not fit into any category. Simply calling them “works made for hire” does not change the law’s restrictions.
Protection of plans and specifications
The Copyright Revision Act (Act) protects “literary works,” including design specifications, and “pictorial, graphic and sculptural works,” such as drawings and models. The protection provided by the Act applies as of the time of the work’s creation whether or not the creator files for copyright protection. However, the Act only protects the “form of expression” and not the underlying idea or concept. So, proving a copyright violation is difficult unless there is evidence that the infringing party copied the actual documents. The law does refer to a violation because the infringing documents were “substantially similar,” but other than through a careful comparison of the original and infringing documents, that standard is difficult to meet.
Architects have another protection under intellectual property law
With the enactment of the Architectural Works Copyright Act of 1990 (Copyright Act), the law in the US conformed with international law that protects “the design of a building as embodied in any tangible medium or expression, including a building, architectural plans, or drawings.” The protection 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. So, an architect can claim infringement if a similar building or development mimics aspects that originated with the person claiming copyright protection. Often, the argument is not about standard details or code-required design elements but rather the “total concept and feel” of the subsequent project.
The concept of “moral rights” is part of copyright law
Architects and other creators should be aware of their “moral rights,” which in the past existed under common law. The Copyright Act provides limited moral rights of attribution and integrity to authors of a narrowly defined class of works of visual art, under the Visual Artists Rights Act. The law provides authors with limited edition works of fine arts and exhibition photographs:
- the right to claim or disclaim authorship in a work;
- limited rights to prevent distortion, mutilation, or modification of a work; and
- the right, under some circumstances, to prevent destruction of a work that is incorporated into a building.
The law provides for waivers of these moral rights, but only by a signed, written agreement specifically identifying the work and the uses of the work to which the waiver applies. Such rights are independent of traditional copyrights and can allow the architect or other creator of a visual work to prevent the client of a project from altering or destroying the work unless the client has obtained the waiver.
Copyright law can be confusing and legal actions are expensive
Design firms should never assume that copyright law will easily protect their designs or that they can duplicate designs by others with impunity. While infringement actions against design firms are usually not based on negligence in the performance of professional services—and, therefore, probably would not be within the scope of professional liability insurance coverage—they can challenge the viability of a firm by damaging a firm’s reputation and draining its assets. And, in the enforcement of copyright, the interpretation of the law can be difficult and costly. Any litigation to enforce the law or to defend against the application of the law can be expensive and time consuming so prudent management of a design firm requires understanding copyright laws and their limitations.