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VOICES FROM THE INDUSTRY: Copyrights can help protect your architectural designs

March 27, 2006

According to the American Institute of Architects, the intellectual property created as a result of a professional's design capability is the most common proof of worth in terms of talent and experience.

In light of its importance, many design professionals might wonder what tion of copies of an architectural work and to create a new architectural work based on the original.

In practical terms, these rights give an owner control over such matters as who can construct a building based on a design, how many such buildings (copies) can be constructed and whether new or improved versions of the building are created. This sort of control can be valuable when, for example, a homeowner is willing to pay a premium for a dream house if it can be assured that a copy of the dream house will not be built down the street.

Not all structures

It is important to note that not all structures are considered "buildings" under the Copyright Act. For example, kiosks for displaying goods in a mall and other structures that cannot be occupied as forms of shelter are not considered "buildings" for purposes of the Copyright Act.

Further, while the original individual elements of an "architectural work" are protected by copyright, unoriginal standard features-such as the existence of a master bedroom-are not protected. However, the selection and arrangement of such standard features, such as the shape, location and size of a master bedroom, can be protected. Finally, the interior decorating and furnishing of a building are not considered part of the "architectural work."

Although an "architectural work" does not have to be registered, there are advan legal tools are available to protect this proof of worth.

In 1990, Congress amended the federal Copyright Act and expressly extended copyright protection to "architectural works," defined as the design of a building in any tangible form, including the building itself, architectural plans or drawings.

This was an important change because prior to 1990 a building could be constructed from someone else's architectural plans without violating the copyright.

Copyright protection exists in architectural works from the moment they are created in a tangible form, such as a drawing, a model, or even a promotional item. An owner is not required to register its architectural work with the United States Copyright Office for protection to exist, but copyright protection gives an owner several benefits. Among the most important are the rights to make and control the distribu tages to registration. First, registration must take place before a lawsuit for illegal copying can be brought in federal court.

Further, while the owner of an unregistered architectural work might obtain the damages it suffers and the profits made by the infringing party, the owner of a registered architectural work can alternatively opt to recover statutory damages (set by the court in an amount currently between $750 and $30,000) for each instance of illegal copying. This advantage can be significant.

Consider an infringing party that builds one copy of a home design on 10 separate properties but, for whatever reason, makes no profit from the sale of the 10 properties. If the design is unregistered, the owner may be limited to recovering the damages it suffered, which might be difficult to prove or relatively minor.

However, if the design is registered, the owner can opt to seek statutory damages and potentially recover up to $300,000. If caught in time, the owner of a building design (whether registered or unregistered at the time of infringement) might also obtain a court order stopping the construction of an infringing building.

Making a decision

Ultimately, the owner of an "architectural work" might have to determine if, and whether it can prove, its intellectual property has been infringed. To do so, short of obtaining a confession or other smoking gun, the owner should consider whether the infringer actually had access to the owner's building design and if the similarities between its building design and the infringing design suggest that copying exists.

Access may be shown in many ways, from evidence that the infringer was shown a building design to evidence that the infringer examined a model of the building.

Whether there is enough similarity between an architectural work and an infringing work involves a comparison of their overall concept and feel, as viewed by an ordinary person, and includes consideration of whether their appeal is essentially the same, even if dissimilarities also exist.

Finally, a thorough and honest evaluation of a potential infringement claim is important before filing a lawsuit. Courts can and have awarded attorneys fees (in some cases for more than $100,000) against the owners of protected architectural works when their claims were objectively unreasonable and crossed the line from vigorous protection to unwarranted intimidation.

That being said, an appropriate infringement claim can be a strong shield against an unscrupulous party looking to profit from your designs on success.



Maurer is an attorney with Baker & Daniels LLP whose practice focuses on intellectual property transaction and litigation matters. Views expressed here are the writer's.
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