Understanding copyright protection for architects
Everyone talks about copyright protection for the architect, but what does that really mean? Copyright is an important and valuable right that architects have. You should understand and use it, both to protect your work from being usurped by others and to assist in collecting fees from your clients.
Under United States copyright law, and as adopted by most foreign jurisdictions, you are granted the exclusive right to reproduce the documents you create for your clients. If anyone else copies your documents without your permission, you are entitled to certain damages and other protections as set forth in the copyright law. To obtain the maximum protection under copyright law, always put a notice of copyright on each of your drawings, sketches, illustrations, specifications, and all other documents. The notice consists of the word “copyright” or the copyright symbol ©, the year in which you created the document, and the name of the copyright holder, either you individually or your firm’s name.
Copyright 2017 Alex Architect, © 2017 Alexa Architect
If you don’t include a notice of copyright, you don’t lose all protection afforded by copyright law. You still hold the copyright, and copyright law still prevents others from copying your materials without your permission. Without the copyright notice, however, you don’t get the full benefit and protection under copyright law. For example, if a party uses a copyrighted work that did not have the copyright notice on it, the infringing party can reduce its damages to the copyright holder by claiming that its use of the copyrighted work was an “innocent infringement” (e.g., the infringing party didn’t know it was a copyrighted work). If, however, the infringed work included the copyright notice, US copyright law would preclude the infringing party from claiming an innocent infringement, thus preserving the full scope of potential damages.
While standard AIA Contract Documents preserve copyright in the architect, many owner-drafted agreements attempt to transfer ownership of the architect’s copyright to the owner. If possible, strike that provision. Alternatively, if the owner objects, suggest instead that you will grant the owner a license to use your documents for the project. That way, the owner gets to use your documents for its project while you retain your copyright. That is AIA’s approach, to grant a license to the owner to use the documents.
If you give your copyright to the owner, you lose the right to reuse your documents on other projects without the owner’s permission. Consider, however, that you likely include in your documents some of your own standard drawings, details, specifications, and other materials that you have spent time and resources developing. You shouldn’t give that material away and legally lose your ability to use it on your other projects.
If you must give your copyright to the owner, limit it to just those portions of your documents that are unique to the owner’s specific project for which you prepared the documents. Specifically exclude from your transfer of copyright all drawings, designs, details, specifications, and all other materials you prepared prior to commencing services on the owner’s project, so that you maintain the copyright in those materials and can use them on other projects.
And to the extent you do give your copyright to the owner, condition transfer of the copyright upon the owner first paying you all amounts due to you under the agreement. This can prove very useful in helping to secure payment of your fees because the owner would be violating your copyright by reproducing your documents without payment.
For more on this subject, visit the Risk Management Program's website.
AIA has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice.