By Charles R. Heuer, FAIA, Esq.
Since the late 1970s, applicable copyright law in the United States has protected original works of authorship fixed in any tangible medium of expression. This brief article will address some aspects of the Copyright Revision Act of 1976 and the Architectural Works Copyright Act of 1990. It is intended to be a basic primer on the nature and extent of protections offered by Copyright Law.
Copyright protection prior to 1990
Copyright protection applies as of the time the work is created – it is incident to the act of creation. As of 1978, the Act protects, among other things, “literary works,” (e.g. specifications) and “pictorial, graphic, and sculptural works (e.g. architectural drawings and models).” After 1990, it also protects “architectural works” (including constructed buildings).
Under the 1978 Act (prior to 1990), if “Adam” could demonstrate that another party (“Ditto”) had access to the drawings or specifications created by Adam and 2) the drawings or specifications created by Ditto were “substantially similar” to those created by Adam, Ditto’s documents would infringe Adam’s copyright. Although “substantially similar” may sound like a simple test, often it is not. For our purposes, if you imagine two drawings laid side-by-side in front of a member of the general public, would that person say that the drawings were “substantially similar” without specific focus on individual details? Again, if so, Ditto’s drawing would infringe Adam’s copyright.
That is all good for Adam, but a basic overlaying principle is that the copyright only protects the “form of expression” of an idea and not the underlying idea or “concept.” For example, you may want to write a book about the long term value of space exploration by the US. Others may have written books exploring that topic, probably including some of the same concepts as you. That should not stop you, however, if you do not copy the words, phrasing and “form of expression” of the prior books.
So, prior to 1990, the Copyright Act did not protect ideas and concepts. This left situations where, for example, someone might see an early sketch created by an architect on the proverbial napkin, but never see any well-developed drawings. The viewer might well “steal” the concept without ever creating “substantially similar” drawings. Copyright law is not much help here. The point at which a “concept” becomes a “form of expression” is often not particularly clear.
Similarly, although Ditto could not properly copy Adam’s plans, he could copy the building built from those plans.
Architectural works after 1990
Now let’s turn to “architectural works,” as protected after 1990. They are defined to be:
“. . . the design of a building as embodied in any tangible medium or 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.”
On the face of it, this seems much more likely to protect an architectural concept (the overall form as well as the arrangement and composition of spaces and elements). However, since “individual standard features” are not protected, it can be very difficult to determine what is protected and what is not. When assessing “substantial similarity” does one try to filter out the “unprotectable,” functionally-required standard elements or does one assess substantial similarity based on “total concept and feel?” Which aspects originated with the person claiming copyright protection and which did not? What was dictated by convention or site or code and what was really original?
Because of the aforementioned difficulties, many courts have referred to an architect’s copyright protection for architectural works as “thin” and “very limited.”
A widely-known incident of alleged copying of an architectural concept is the situation where Thomas Shine sued SOM with respect to SOM’s design of the Freedom Tower in New York City. Shine alleged that a design he presented as part of his Master’s degree program at Yale University was misappropriated by David Childs of SOM. Childs had seen Shine’s work while acting as a design studio juror at Yale. Shine sued on the basis that his tower design concept, as presented to Childs, was copied by Childs and incorporated into the design of the Freedom Tower. The case settled so there is no public record of the trial.
The concept of moral rights
Finally, architects should be aware of “moral rights” in buildings. These arise from the “Visual Artists Rights Act,” which is now part of the Copyright Law. Such rights are independent of traditional copyrights and can allow the architect to prevent the owner of a building designed by the architect from altering or destroying the work.
In summary, Copyright Law gives architects and others who create original works a number of rights and protections. Even so, the idea or concept underlying and reflected in the copyrighted work may not be so clearly protected.
Further, the reverse may be true and the owner may seek to restrict the architect’s further use of applicable concepts. Therefore, consider addressing this matter (among others) in the contract between owner and architect. (Remember that such agreements will probably not bind third parties.) Consult legal counsel, and then consider language like this:
“Notwithstanding anything to the contrary in this Agreement, [Architect] shall retain all right, title and interest in and to the concepts which are represented and inherent in the Instruments of Service prepared under this Agreement. [Client] hereby agrees that it shall take no action which would in any way operate to restrict or deprive [Architect] of the right to make future use of such concepts and to modify or expand such concepts in the future on other projects or for other clients."
Never forget that litigation is no fun – win or lose. Therefore, don’t blindly assume that your concepts will be protected by Copyright Law or that you have the right to copy the concepts or documents created by others if you just make minor changes. If you are a “big idea” person, directly address the rights you want to maintain and what you are willing to share.
This issue of the Practice Management Digest sponsored by
The AIA Trust offers a free 75-minute webinar for design professionals which covers principles of intellectual property law to provide a working knowledge of copyright law as it affects an architect’s work products and use of others’ work products. After listening to the webinar in its entirety, AIA members may receive 1.25 HSW learning unit credits. Visit the AIA Trust webinars page by clicking here, and scroll down to the webinar entitled Copy-Catting: Intellectual Property Principles & Rights.
Charles R. Heuer, FAIA, Esq. is an architect, attorney and risk management consultant. He runs the LegaLine program for the AIA Trust.
(Return to the cover of the 2016 PM Digest: Intellectual Property)