Copyright protection for architectural works that were unconstructed and embodied in unpublished plans or drawings on December 1, 1990, will terminate on December 31, 2002, unless the building has been constructed by that date.

In 1990, Congress enacted the Architectural Works Protection Act, which amended the Copyright Act to provide full protection for architectural works. The 1990 act defines "architectural works" as "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of the spaces and elements in the design, but does not include individual standard features." (See 17 U.S.C. Section 101.)

Architectural works eligible for protection under the 1990 Act include those works created on or after December 1, 1990, the date the legislation was enacted, and architectural works that were unconstructed and embodied in unpublished plans or drawings on that date. Publication of an architectural work occurs when underlying plans or drawings of the building or other copies of the building design are distributed or made available to the general public by sale or other transfer of ownership, or by rental, lease, or lending. Construction of a building does not itself constitute publication for purposes of registration, unless multiple copies are constructed. (See 37 C.F.R. 202.11[5].) Architectural works created before December 1, 1990, are still covered by the pre-1990 statute and case law.

So, what does this mean for you? If you created a plan or drawing, which existed on December 1, 1990, and that had not been published on that date, the copyright protection in that work will expire on December 31, 2002, unless the building has been constructed by then. Architectural works that fall under this category and have been constructed by the December 31 deadline will continue to receive copyright protection until December 31, 2027. The legislative history for the Architectural Works Protection Act notes that Congress included this provisional cut-off date to encourage construction of these unpublished creations.

Some details of the 1990 Act
The Architectural Works Protection Act grants the owners of architectural works the same exclusive rights as other copyright owners, with two exceptions:
• 1) The copyright in an architectural work that has been constructed does not prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is visible from a public space. (See 17 U.S.C. Section 120 [a].) In other words, taking a photograph of the building in which the work is embodied does not violate the copyright law.
• 2) The owners of a building embodying an architectural work may, without the consent of the copyright owner of the architectural work, make alterations to the building and destroy or authorize the destruction of it without infringing the copyright owner's rights. (See 17 U.S.C. Section 120[b].)

The term of copyright protection for a particular work is governed by a number of factors. Therefore, you should consult a copyright lawyer regarding works that you believe may be affected by the December 31, 2002, deadline, as well as the nuances pertaining to the scope of protection for specific architectural works.

Copyright 2002 The American Institute of Architects. All rights reserved.