Legal Protection for Architectural Works and Designs?
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Your custom-designed dream home is uniquely yours. The site plan, architectural drawings, and structure itself may be protected from copyright infringement by other architects, contractors, or other owners. Even in the world of real estate, copyright protections can exist for unique works of authorship that are fixed into a tangible medium, like a blueprint, unique site plan, renderings, elevations, or even Autocad designed engineering plans (ex something produced with Autocad LT or 360 software). Basically anything that uses the intellect and creative juices that is put into a concrete form can be the subject of copyright registration. This IP blog provides some answers to some of the important questions in this unique area of law.
What is an “Architectural Work” under 17 U.S.C. §102?
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings;
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
The law applies to buildings and other architectural works created after December 1, 1990. While “architectural works” seems vague, Congress also defined “architectural works” to mean the “design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.”
Here is one case where a Plaintiff with a floorplan sued a Defendant for using what was alleged to be substantially similar:
In 1996, Designworks designed and constructed a home at 4306 Melrose in Columbia, Missouri. The home design is configured and described as a “triangular atrium design with stairs” (hereinafter, “the Design”). Between 1996 and 2001, Designworks used the Design in at least 4 other residential builds. In 1999, Designworks designed and constructed a home, using the Design, at 1713 Kenilworth in Columbia, Missouri. The completed structure at this location is visible from a public street.
In 2004, Designworks applied for and received a copyright registration for a house in which it used the Design located at 4804 Chilton Court, Columbia, Missouri. The copyright application was titled “Atrium ranch on walk out; Angular atrium ranch.” The registration number for this copyright for “Architectural work,” effective May 10, 2004, is VAu 623-402.1 (“Registration C”). The deposit materials for Registration C are photographs of the exterior and interior structure at 4804 Chilton and drawings. In 2013, Designworks applied for and received a copyright registration for an architectural work that used the Design. The copyright application was titled “2,187SF.” The registration number for this copyright for an architectural work, effective June 6, 2013 is VAu 1-133-136.2 (“Registration U”).
The architectural work for Registration U was never built. The deposit materials for Registration U are drawings. On February 23, 2017, Defendants listed the home at 1713 Kenilworth for $465,000.00. Defendant House of Brokers was the designated broker for the 1713 Kenilworth and the real estate agents for the listing were Jackie Bulgin, Shannon O'Brien, and Debbie Fisher. On February 15, 2017, Sphero Tours / Shawn Ames (“Sphero”) sent an invoice to Defendant House of Brokers, care of Jackie Bulgin, for Sphero's work measuring the interior dimensions and creating a computer aided design drawing of the interior of 1713 Kenilworth.3 On February 23, 2017, Defendant Jackie Bulgin completed a Residential Property Data Entry Form, MLS #308591, for 1713 Kenilworth in the Flexmls/MLS system. Bulgin selected the option to export the listing for 1713 Kenilworth to all available options, including Realtor.com, Supra, Zillow, and Homes.com. Pursuant to Bulgin's authorization on the MLS, the Floorplan was distributed to Realtor.com, where Designworks discovered it. Defendants marketed 1713 Kenilworth using the Floorplan from February 2017 to July 2017. The house did not sell during that time period.
CAUSES OF ACTION
Designworks alleges the following claims based on their rights in the Design and Defendants' creation of the Floorplan:
(III) vicarious infringement;
(IV) violation of VARA (Visual Artists Rights Act)
The Court held:
"However, “[a]rchitectural plans and drawings are protected by copyright law as ‘pictorial, graphic, and sculptural works,' and ‘architectural works.'” CSM Invs., Inc. v. Everest Dev., Ltd., 840 F. Supp. 1304, 1309 (D. Minn. 1994) (citing 17 U.S.C. § 102(a)(5), (8)). ‘Pictorial, graphic, and sculptural works' include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. An ‘architectural work' is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work 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.
"ACCESS" TO THE COPYRIGHTED WORK MUST BE PROVEN
The Court of Appeals for the Eighth Circuit has observed the infringement element “[t]ypically . . . cannot be proven directly.” Moore, 972 F.2d at 941. “Therefore, copying can be established by demonstration of access (by the alleged infringer) and substantial similarity (between the works at issue.).” Id. at 941-42. A plaintiff alleging infringement can establish the access requirement of the infringement element “by showing that the defendants had an opportunity to view or to copy his work.” Id. at 942 (citing Sid & Mary Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157, 1172 (9th Cir. 1977)). A “bare possibility of access” is insufficient; rather, a plaintiff “must prove that the defendants had a ‘reasonable possibility' of viewing his work.” Id. (citing Ferguson v. Natl' Broad., Co., 54 F.2d 111, 113 (5th Cir. 1978).
17 U.S.C. § 120(a) DEFENSE:
Defendant sought summary judgment on the following:
17 U.S.C. § 120(a). Before 1990, architectural plans and drawings were protected in copyright as “pictorial, graphic, and sculptural works,” and completed buildings fell into the category of “useful articles” under the Copyright Act. Leicester v. Warner Bros., 232 F.3d 1212, 1216- 17 (9th Cir. 2000) (citing 17 U.S.C. § 101). The Architectural Works Copyright Protection Act of 1990 created “a new category of copyright protection for works of architecture.” Id. at 1217 (citing H.R. Rep. 101-735, at 4-10.). “Congress did not afford architectural works full copyright protection; rather, it exempted the making of pictorial representations of architectural works from copyright infringement.” Leicester, 232 F.3d at 1217. The main justification for this exemption is due to the “public, social purpose” of architecture as an art form, and pictorial representations of architecture “do not interfere with the normal exploitation of architectural works.” Id. (citing H.R. 101-735, at 22). Section 120(a) particularly applies to architectural works, “rather than rely[ing] on the doctrine of fair use, which requires ad hoc determinations.”
“[C]ourts applying the plain language of 17 U.S.C. § 120 have concluded that interior elements of a house constitute ‘architectural works.'” Kitchen & Bath Concepts of Pittsburgh, LLC v. Eddy Homes, No. 16-589, 2016 WL 7404559, at *4 (W.D. Pa. Dec. 22, 2016) (citing Nason Homes v. Billy's Constr., Inc., No. 3:14-CV-566, 2015 WL 6812705 (M.D. Tenn. Nov. 5, 2015); Design Basics L.L.C. v. DeShano Cos., Inc., No. 10-CV-14419, 2012 WL 4321313 (E.D. Mich. Sept. 21, 2012); Landrau v. Solis-Betancourt, 554 F. Supp. 2d 102, 107 (D.P.R. 2007)). Moreover, § 120(a) has also been read to apply to technical drawings upon which a structure might be based. Morgan v. Hawthorne Homes, Inc., No. 2:04-CV-1809, 2009 WL 1010476 (W.D. Pa. Apr. 14, 2009). “Therefore, creating a ‘pictorial representation' of a constructed work that is located in a building visible from a public place is not an act of infringement.” Sorenson v. Wolfson, 96 F. Supp. 3d 347, 365 (S.D.N.Y. 2015).
Can I get copyright protection for a site plan or even blueprints?
Yes its possible. In fact, as long as the site plan or blue prints are original and unique, they can be afforded copyright protection by two different copyright subject matter categories. First, per the Architectural Works category (as mentioned above), which could cover original works including site plans, models, elevations, CAD designs, blueprints, and renderings. Second, site plans or other engineering plans can also protected under the “pictorial, graphic, and sculptural works” category under 17 U.S. Code §102. As long as you can find a category to seek protection under the Act, you should consider filing for copyright protection. For one, its cheap, and registration sets the groundwork to file an infringement lawsuit if necessary. Registration is a pre-requisite.
Are my Architectural works unique or original enough for copyright protection?
This is a question a good copyright lawyer can help you decide. In most cases, if you put your left brain and right brain together and came up with something that “WOWS” then usually the answer will be YES! For example, perhaps your home is a custom home (say a beautiful high tech mansion that takes up three oversized lots). You reduce your plans to a blue print, site plan, and have some creative renderings. These types of documents can be protected. Keep in mind the threshold is not super high to seek protection and we offer an affordable copyright service.
What if a similar building design (office, industrial, residential or retail) already exists?
You still may qualify for registration. In order to determine whether the design of the building and the accompanying architectural plans are afforded copyright protection, or on the flip side, whether an architectural work infringes on a copyright owner's original work and should be denied federal protection, the U.S. Copyright office and the federal circuit courts usually use one of two tests to determine that very question.
A. Under the “total look and feel test”, the two works are compared by ordinary observers to determine if they are “substantially similar“. For example, if newly constructed House “A” looked almost identical to older House “B” except for one window that was triangular instead of square, House A might still be held to be substantially similar to House B, and may be infringing on House B's original design. This could also deny registration leading an applicant to file an appeal (see below)
B. Under the “filtration” test, a court would filter out unoriginal portions of the work before comparing the original/unique portions of the separate works to find out if they are substantially similar. So for example, parts of a building or residence that relate to form or function (ex. rain gutters) might be stripped away in comparing the two properties to see if they are too closely related.
What happens if your filing for protection is rejected by the U.S. Copyright Office?
You can always file an appeal. As it notes on the government website Copyright.gov:
Appeals of Denial of Registration – Under title 17, the Register of Copyrights may determine that the material deposited for copyright registration does not constitute copyrightable subject matter or that the claim is invalid for other reasons. In such cases, the Register refuses registration and notifies the applicant in writing of the reason(s) for such refusal. Applicants whose claims for registration are rejected can appeal such decisions in a two-stage process. The first appeal is made to the Examining Division. If the Division upholds the refusal, a second appeal may be made to the Copyright Office Board of Appeals, consisting of the Register of Copyrights, the General Counsel, and the Chief of the Examining Division.
Our intellectual property law firm can help you respond to a denial or rejection of your application. Call us at at the number above for more information or to speak with an IP attorney.
Why are the benefits of registering a copyright for my building?
As mentioned above, you need to register your copyright before you can file a suit alleging innocent or willful copyright infringement. Either way, you can seek damages from $30,000 to $150,000. See our video below that discusses damages.
Registering a copyright for your custom or original building design or plans also offers the opportunity for attorneys' fees, and court costs. Statutory damages means that the court can award a set amount in damages rather than requiring the copyright owner to prove the actual damages suffered (which sometimes is not as easy as it sounds). These enhanced remedies are available if you register your building with the United States Copyright Office before the infringement is commenced by the infringer. If you are seeking to register a copyright for an architectural work including site plans, note also that you must register within three months of the first publication of the architectural work. This is a very important fact to keep in mind.
Overview of damages available to Plaintiff's in a copyright lawsuit
VIDEO: Click on the picture above to watch our video. Make sure to click on the RED “V” for Victory to subscribe to our Youtube channel. We are approaching a quarter of a million hits to our legal channel and we thank you all for your continued support.
Can a unique building “trade dress” be copyrighted (the outside appearance of a business or building)?
“Trade dress” is the look and feel of a product that is identifiable by consumers and distinguishes it from others. A classic example of trade dress is the iconic Coca-Cola bottle shape. Even without its' labeling, most consumers associate the bottle shape with Coca-Cola. The trade dress of a building refers to the architectural design of the exterior or interior of a building (ex. everybody knows what KFC looks like the minute they see the building).
Generally, trade dress is attained over a period of time as it takes time for the design to achieve identifiable status in the minds of consumers and in the marketplace (i.e. a “secondary meaning”). Once consumers begin to associate your building's distinctive architectural design with you or the building itself, trade dress has been acquired, and it may be possible to obtain copyright protection for the look and feel of the exterior of the building. These designs can also be generated by computer software programs that can aid in the design such as Adobe photoshop as this excellent article on “composite a 3D building into a photo.” It is recommended to take the additional step and register trade dress with the United States Patent and Trademark Office (USPTO), to obtain additional advantages under the trademark laws.
Can I stop someone from commercializing a photo of my historic building without them paying me a licensing fee?
Generally, no. However, there are a few exceptions and one time I was asked to stop taking photos outside an historic building (to my surprise). I was actually asked to file an application with the City to pay a fee for the privilege of taking my photo with the building. So it can and does happen. I am assuming if I kept shooting photos I would have been escorted off the property.
Keep in mind, the law generally does not apply to buildings built before December 1, 1990, so if someone took a picture of a building you own that was built in 1989, you will have a much more difficult time trying to stop them from taking photos, creating a painting, or otherwise commercializing the building or structure.
Also, if your building (built after Dec. 1, 1990) is viewable from a public place, you as the owner, architect, contractor, or developer, will likewise have difficulty preventing others from commercializing a photo or painting of your building. If you want to know if there are any exceptions to the general rule, contact us to discuss.
However, if someone enters private property without permission to take a photo of your building (built after Dec. 1, 1990), in addition to them being a possible trespasser, you may be able to allege copyright infringement if they attempted to commercialize your copyrighted works by creating a substantially similar copy (keep in mind there are defenses for parody, fair use, and “transformative” uses that may also come into play).
The same rules and exceptions generally apply for interior architectural works (for example, your building's distinctive lobby design) as well. If the interior of your building is not publicly viewable, you may be able to prevent someone from commercializing a photograph of the interior of your building or otherwise copyright unique and protected elements if:
- The interior is sufficiently original to warrant copyright protection (ex. the inside of a building may contain an old courthouse);
- The elements are not “functional elements whose design or placement is dictated by utilitarian concerns”(ex. atriums, arches and ceilings that are novel); and
Even if you cannot satisfy these elements, you still may be able to prevent them from commercializing the photo or painting if there were other contractual or privacy related issues (ex. breaching a contract such as a ticket to enter) or invading privacy.
If you still believe you cannot stop them from commercializing a photo or painting of your unique building or exterior, look a little bit closer at the photo. If the photo or painting contains a “separable” work of art – like a garden sculpture, newer statues, or murals — these may also be protected under general copyright laws that protect artists, and creators, and if they are memorialized within the photo, it may constitute copyright infringement if the items were registered. It always makes sense to provide a warning sign or notice to the public that taking pictures or making other illegal copies may be illegal. I saw this once in an antique shop that had original birdhouses for sale.
For more information
A. Here is an interesting list of properties and various objects that may cause issues if photographed and made available for commercialization.
B. Article on IP protection for engineering plans
Contact a Copyright Protection Law Firm
We have vast experience in the area of federal copyright law and software compliance audits. We can help you ensure your architectural designs and building blueprints are protected, and can help you as a Plaintiff if you believe that your designs or architecture has been wrongfully copied and we represent Defendants being bullied or faced with a civil suit over any type of copyrighted work including music, books, lyrics, art, photographs, videos, film and other creative products. We can be reached at (877) 276-5084. We offer free initial consultations and “flat rate” legal fees for some, but not all cases. When it comes to intellectual property, there is simply no substitute for passion or experience. We offer both.