Practicing ArchitecturePracticing Architecture

By Terrence Canela, Esq.

Read the companion article in the June 2012 issue of Architect Magazine

Intellectual property laws seek to strike balance between protecting the interests of an author (copyrights), inventor (patents), or business owner (trademarks) and the interests of the public, while fostering a vibrant environment of creativity (copyrights and patents) and protecting consumers (trademarks.) 

For architects, most intellectual property issues will be with respect to copyright.

The Basics

The U.S. Copyright Office and the U.S. Patent and Trademark Office have excellent resources on the basics of copyrights, patents, and trademarks. 

Traditionally, if you created an original copyrightable work and reduced it to a fixed medium, it is yours. But as a design professional, what is yours depends:

• If you work for a firm, the firm may own your work. 
• If your firm’s contracts stipulate the client owns what you create, then the intellectual property may belong to client. 
• If the work you do is “work-for-hire,” then your creation belongs to the person or entity paying. 

If you own the work, you can license its use or sell it.  For architects, typically, an engagement contract will specify who owns the copyright in the work provided. See an explanation of AIA Contract Document B101 and other owner/architect contract documents.

What Is Protected By Intellectual Property Laws?

Three things generally are subject to copyright:

• The technical aspects of the drawing
• The artistic aspects of the drawings, assuming the structure contains components that could exist as separate works of art
• The design of the building

The U.S. Copyright Act of 1976 applies to the first two bullets; for the third, the Architectural Works Copyright Protection Act of 1990 (PDF).

Ideas, concepts, standard building features, or other functional design elements necessary to meet technical or constructional requirements are not protected. 

Artists also retain certain rights under the Visual Artist Rights Act of 1990 (VARA).  Under VARA, exhibited paintings, drawings, prints, sculptures, and still photographic images receive certain protections. 

• If you use an artist’s work, be aware that the artist may retain certain rights of attribution and integrity, which means, respectively, credit and the right to protect the artist’s reputation against modifications of the artist’s work.
• If you transfer copyright to someone else or they transfer it to you, the transfer must be in writing and signed by the copyright owner.

Whether one work infringes on the copyright of another will depend on an objective standard:  Whether a layperson would find the work substantially similar. 

Under the Berne Convention, of which the U.S. is member signatory nation,  U.S. copyright law may be enforced against U.S. based architects by a foreign national or entity for a project in another Berne Convention member country. 

Tips

• Have a prior written agreement in place that specifies intellectual property rights: 
• Include who owns what and what the parties can do with what is owned. 
• Include what happens if the agreement terminates early. 
• Make sure you understand what you do and do not own and what everyone can and cannot do with respect to what you own. 
• Make sure you understand what you can and cannot do with what someone else owns.
• If you seek copyright protection, make sure you comply with the statutory copyright requirements within three months to take full advantage of the statutory damages. 
• Make sure you have not assigned your rights to someone else. If you do, make sure you understand what you have given. 
• If you do copyright your work, comply with the copyright notice requirements.