Reprinted with the permission of Jordanna Smida of design/build Business http://www.designbuildbusiness.com/
What you don't know can hurt you, especially when it comes to architectural copyright.
THE BREAKDOWN ON THE LAW
Louis Bonham, with Rosenthal & Osha, LLP, in Houston is one of the leading copyright attorneys in the country. His clients range from one-man architectural firms and small builders to international architectural firms and developers. Bonham has handled hundreds of architectural copyright disputes including cases that have resulted in some of the largest judgments and settlements in this area of law.
Myths of Copyright Laws
Architectural copyright law has been in place since 1990. However, Bonham says that even with the laws in place, large judgments are getting publicity, leading many to fall victim to copyright myths:
According to Bonham, every listed item above is a myth. "If you believe these to be true you're putting yourself in jeopardy. If you guess wrong in this area of law, it can get really ugly, really fast...you can get burned badly if you don't know what you're doing," he warns.
While Bonham hears from people quite often that everyone in the industry copies everyone else, he says it's no longer legal to do.
"For a long time that was fine, until the laws changed," he explains.
In 1990, Congress officially instated the Architectural Works Copyright Protection Act of 1990 (AWCPA) into law. One of the issues the laws raises is what constitutes an architectural work. According to the law, Bonham says the statute defines it as the design of a building as by any tangible medium of expression.
"It's not just the plans...it's any tangible medium- plans, building or sketches. If you build an infringible house, that's treated as an infringement," he says.
The key word is building, he adds. Works including bridges, cul de sacs and parking lots are not included, but buildings including gazebos, apartments, homes and churches are protected by the act.
A work's overall form and individual arrangements and combinations are also protected under this act. "It doesn't include individual standard features like a 32-in. wide door. But, how you combine the features can be protected under copyright," Bonham explains.
LIMITATIONS TO PROTECTION
There are certain limitations under the act as to what's protected. The main limitation to be aware of is that only works that were created and first constructed after Dec. 1, 1990 are copyright protected under AWCPA.
"You can copy Frank Lloyd Wright as long as you don't copy his plans directly," Bonham says.
It's also important to know that copyright protects an expression not an idea. "If you have a particular idea of a home, the idea isn't protected. It only becomes protected once you build it or put it on paper. This protects against copying. Someone can't copy your expression. If someone comes up with it independently, they're OK," he explains.
The term copyright exists for the life of the owner plus 70 years. Bonham points out that by the time a copyright expires, the industry should be moving onto better designs and buildings. "For all intents and purposes copyright in architecture is permanent," he states.
WHAT IT MEANS TO HAVE A COPYRIGHT
Having or obtaining copyright gives you certain exclusive rights, according to Bonham:
Often, one of the most disputed issues in copyright infringement is who owns the copyright. The owner is the person who actually creates the work.
"Just because a builder pays for an architect or designer to create a plan does not give the builder ownership. The copyright owner is the one who fixed the work," Bonham explains.
Bonham reiterates that if an architect leaves a firm most often the firm owns the copyright to his designs. "What can he do? Nothing. He doesn't own the rights; the company does. Making copies and derivatives is also infringement. He can go and make his own photographs if his works are visible from a public place, and he can take those photos to show clients the work he can do, but he can't actually create it for a client," he explains.
It's good business practice Bonham says to be sure everything is in writing. "If you want to transfer the copyright, it has to be in writing signed by the copyright holder. No implicit transfers such as 'I understood I was going to be the copyright holder' will work. The courts have come down hard on this. It's just like transferring land; it has to be in writing," he explains.
Partial assignments are also a compromise to consider. For example, an architect can give exclusive rights to a builder for a design in a specific geographic area, Bonham says.
He also advises that if you're in doubt whether or not you are committing infringement, use the book test. "If you bought a book at the bookstore, you can loan it to someone, etc., but you can't make copies of it. You own the book, but not the right to copy it. So, because you bought a set of plans, you don't have the exclusive rights to the plans.
Bonham also explains courts do not accept that a homeowner went to a builder with a sketch or suggestion of ideas as enough of a case to have copyright ownership or co-ownership. "AIA contracts state very clearly that the architects is the sole owner. If that is in place, there is no dispute," he says.
Infringement, according to (Walt) Kelley, is any sort of unauthorized copying and sales. "We had a question where someone started a job, got kicked off, and the clients took plans elsewhere for another builder to build them. If there was no permission given, then that's copyright infringement," he explains.
Copying a plan, Xeroxing blueprints and building the house itself are all infringements, and there is no such thing as an innocent infringer defense, according to Bonham.
"The fact that you were deceived doesn't matter for liability and damages," he advices.
This is important because of the remedies for copyright infringement. "When you get into dealing with building, the results are horrifying," Kelley says.
While plaintiffs are usually only able to recover the damages lost, Kelley says in a copyright case, you're not only entitled to recover your damages but also your fee and any profit made from selling the home that violated the copyright.
"In essence, it's double recovery. Disgorgement awards can be huge, particularly when you're moving from single-family structures to larger projects. The value of these structures and the profit earned from them can be huge," he explains.
One of the quirks of the copyright laws is that you don't have to prove the infringer's damages, Kelley says. "All you have to do to prove your damages is figure out what the gross sales price of the structure is, and then relax.
He says it becomes the burden of the alleged infringer to prove his innocence. And, because there is no practical way to tell how much of the profit goes to the design, to the craftsmanship and other factors, Kelley says the tie goes to the copyright owner. "The entire profit of the house goes to the owner of the copyright."
If someone has violated your copyright, one step to prevent the infringement is to get an injunctive relief. "This gives you the potential ability to stop the resale or sale of infringing homes," Kelley says.
The copyright owner can also block the bank from selling an infringed home after taking it back in foreclosure. "The bank would have to pay off the copyright owner and take a loss on the loan," Kelley explains.
Garden Homes has and will protect it's rights given under the Copyright Laws.