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The Need for Homebuilder Vigilance About Copyrights

Philip R. Stein

Are homebuilders as vigilant as they should be in protecting their intellectual property rights — including the copyrights that qualifying architectural drawings and structures receive automatically as a matter of law, even if a person or company does not formally register for a copyright? Conversely, are builders as careful as they should be to avoid infringing on the copyrighted drawings and structures of others? These questions are brought to mind because so many of us tend to associate copyrights with books, movies, plays and many other kinds of “creative” works … but not necessarily architecture. But copyright protection does exist for non-standard, “creative” aspects of designs and buildings.

Before December 1, 1990, there were no copyrights for architectural structures (i.e., buildings). Up until that time, only architectural drawings received copyright protection. That changed as a consequence of an amendment to the Copyright Act. Now, any qualifying building constructed after December 1, 1990, automatically is copyrighted to the person or company who “authored” the drawing or plan.

Of course, copyright protections related to buildings and building designs do not have an unlimited scope. “Consistent with other provisions of the Copyright Act and copyright regulations, . . . protection [of architectural works] does not extend to standard features, such as common windows, doors and other stable building components.” Accordingly, architectural designs must be analyzed to determine the scope of their functionality.

Here are a few of the key things to consider with regard to the applicability and effects of copyrights pertaining to building designs and design plans: First, construction of a structurally similar building without a copyright owner’s permission may infringe the owner’s rights. In 1990, Congress passed the Architectural Works Copyright Protection Act, which expressly provides copyright protection to original designs of architecture in virtually any form, including architectural plans, drawings and buildings themselves. Builders, architects and homeowners should therefore not attempt to duplicate other architectural works in any form.

Making minor or subtle changes to building plans does not necessarily prevent a viable claim of copyright infringement. “Innocent infringement” is no defense. Copyright protection arises as a matter of law for “copyrightable” designs and structures, so the lack of any copyright notice published, or formal copyright registered, by the owner of such rights may not prevent a successful claim for infringement. Nevertheless, architects and designers are well-advised to register their copyrights, which will enable them to receive enhanced damages in a successful case for copyright infringement against an infringer. And, in any instance in which a builder or builder employee receives design plans from another party, it would be wise to insist on a right to indemnification from that other party in the event a third party later claims infringement.

We plan to cover these and other issues in more detail in a future installment of our Homebuilder Webinar Series, and will publish the webinar date with plenty of advance notice. In the meantime, the “bottom line” is that heightened consideration of copyright issues — as both a potential basis for recovery and as a means of avoiding infringement of others’ rights — would be of benefit to builders.

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