Marking an important change in U.S. intellectual property law and the construction industry, on December 1, 1990, President George H. W. Bush signed into law the Architectural Works Copyright Protection Act (“AWCPA”), extending federal copyright protection to architectural works. Specifically, the AWCPA protects the nonfunctional, artistic features of original architectural designs represented in virtually any form, including plans, drawings, and buildings themselves. In the twenty-five years since its enactment, courts have sought to interpret and construction and design professionals have grappled with the AWCPA’s broad subject matter, most notably on the consequences of copyright ownership of an architectural design.
This may be a shock to many owner-developers, but paying for architectural plans and/or owning the building embodying the design conveys no automatic ownership right to the copyright in the design documents or even the design of the building owed. If the contract does not state otherwise or no written agreement to the contrary is executed, the original architect or designer retains ownership of the copyrights and the purchaser merely obtains a non-exclusive license to use the plans for that particular construction project. The copyright owner and the project owner are not synonymous terms.
With a handful of exceptions, this result carries with it a number of lasting implications as to an owner’s and even general contractor’s right to use, and potential infringement of the copyright in a project or building’s design. Additionally, it is crucial for architects, engineers, and other design professionals to understand the scope of copyright protection when filing copyright applications, deciding whether to incorporate a feature from another design, or litigating a lawsuit for infringement.
To provide a more thorough examination of these issues, future newsletters and circulated articles will address the host of considerations that copyright protection of architectural works generates. Over the next several months, look for publications on the following topics:
- The design elements and types protected by copyright and the breadth of copyright protection for any particular design.
- How the major AIA forms of owner-architect agreements address the use and ownership of copyright to design documents.
- Practical suggestions for negotiating contract terms and conditions pertaining to the copyright to design work.
- The copyright implications of regenerating building plans for the purposes of a building addition or renovation, particularly when Building Information Modeling (BIM) programs are used.
- What courts consider in determining if a building design is an infringement of another and tips to help construction professionals protect themselves from architectural copyright disputes.
- Vicarious copyright infringement as it pertains to various third parties, such as project lenders and financiers.
