Articles Helping you understand the law
Copyright Protection For Building Designs And Architectural Drawings
A common problem for architects and construction companies is someone using one of their designs without permission. This might be a rogue client who refuses to pay for the design but is planning to use it anyway. Or it might be another construction company trying to please their client who likes a building designed by your firm.
Fortunately, copyright law can help you cheaply protect against this problem, because each copyright you register protecting a design only costs you $35 in filing fees but makes you eligible to receive up to $150,000 in statutory damages. And as described below, you could register multiple copyrights for the same design, resulting in millions in statutory damages that you can waive in front of a potential infringer as a strong deterrent to them using your design without permission.
Statutory damages simply means damage amounts set by statute, as opposed to actual damages for actual harm done to your business. It can be hard to prove the extent of financial harm due to copyright infringement, and even when you can the statutory damage amounts are usually higher, which is why I focus here on statutory damages.
It Is Important To File Your Copyright Registration Before Infringement Occurs
Whenever a design for a building is used without permission, it is copyright infringement. If you have timely registered your copyright with the US Copyright Office, you can receive up to $150,000 in statutory damages if your work is used without your permission. You can additionally receive any attorney fees necessary to pursue someone for infringement.
However, there is a time requirement for these damages that makes it important to file a copyright application for your design soon after you create it. Architectural works and technical drawings are generally considered unpublished for copyright purposes. And for unpublished works, the statutory damages of up to $150,000 plus attorney fees are only available if the work was registered before someone used it without permission.
The Advantage Of Multiple Copyright Registrations
One option if you think your work is likely to be copied is to file multiple copyright applications for your work. First, the overall design for a building is considered an “architectural work” protectable by copyright even if nothing has been constructed yet. A set of technical drawings could be the deposit sent to the Copyright Office for registering the architectural work, but the drawings can also be registered separately as technical drawings. Additionally, you could register all the technical drawings for a building either as separate drawings or as a single collection. The design for your building could therefore yield over 10 separate copyright registrations.
Why would you want multiple copyright registrations instead of just one? The advantage is you would be eligible for far more in statutory damages than if you had a single copyright registration. Copyright statutory damages are for up to $150,000 per registered work. If you had a single registration for your design and someone copied it, you would only be eligible for up to $150,000 in statutory damages. But if you had 10 registrations for the same design, you could receive up to $1.5 million in statutory damages. Since the copyright filing fee is only $35 per application, the cost of filing additional applications is easily justified for any design that is likely to be copied.
Providing Notice Of Your Copyright
In order to receive the maximum amount of statutory damages possible when someone copies your work, the infringer must have received notice that your work had copyright protection before they infringed. Providing notice is slightly more complicated for architectural works and technical drawings since they are usually unpublished, as discussed above.
However, unintentional infringement is still infringement. If someone copies your design but did not receive notice of your copyright, they still infringed your copyright and still owe statutory damages if your copyright registration occurred before the infringement. The only difference is that they may owe you far less in statutory damages, which is why providing notice of your copyright is important.
- Here are four suggestions for providing notice of your copyright. Note that only the first two are Copyright Office recommended ways of providing notice:
- For unpublished works, the Copyright Office recommends affixing a notice using the format Unpublished work © 2010 John Doe. Architectural plans are not considered to be published even if they are filed with public authorities or used in public meetings, so it is recommended this notice format is used on all architectural drawings.
- Similarly, a design that was only built once is not considered to be published for copyright purposes. However, if the building has a plaque or other place where information about the building is listed, it is recommended that you use the same Unpublished work © 2010 John Doe notice format to give notice of your copyright.
- On your website and any marketing materials for your firm’s design services, you should place a notice that your firm’s designs are registered with the US Copyright Office, that unauthorized use of them is copyright infringement, and that your firm will seek statutory damages and attorney fees if it discovers any infringement.
- You will want to specifically notify anyone you suspect is planning to use one of your designs that it is protected by copyright. This might mean sending a general notice to an unscrupulous competitor or sending a specific notice to someone you see is constructing a building just like one of yours.
What To Do If Your Design Is Copied
Normally I recommend consulting a lawyer before contacting someone who has committed infringement because the infringer may try to destroy evidence of the theft. However, with architectural works it is more difficult to destroy this evidence. Additionally, it is worth making contact quickly because your goal is to halt construction before it progresses any further.
The person who used your designs without authorization will probably make various excuses.
First, they might claim they didn’t know. As discussed above, even if this is true, it will only reduce the amount they have to pay you. It will not make what they did okay.
Second, they may claim they made sufficient changes to your design that it is no longer your design. However, copyright law gives you the right to make any derivative works based on your copyrighted work. Therefore, no one can modify one of your designs without your permission.
Third, they may claim that they are free to use the design. At that point, you can show them your copyright registration certificate and explain that they owe you money for using your design without permission. Since you registered your design before they stole it, you are entitled to attorney fees if you need to hire an attorney to enforce your rights, so it is in the infringer’s best interest to pay you quickly rather than fight you.
You may be able to save time and money approaching the infringer on your own. However, if you prefer to negotiate through an attorney, or if the infringer is resistant to paying you or ceasing use of your designs, then we are here to help. The fact that the infringer has to pay your attorney fees if the case goes to trial should result in a larger settlement that effectively pays for your use of an attorney to negotiate with the infringer.