Copyright or Copy Wrong?
Fourth in a Series

by Greg Hancks, AIA

How do you . . . distinguish between copyright in architectural drawings and the design itself.

Summary: You may know (or think you know) your basic rights and obligations under copyright law. But what misconceptions are commonly held by people you work with: your boss, employees, clients, or consultants? You might be surprised. This is the fourth in a series of articles exploring various aspects of copyright that are frequently misunderstood. In this installment, we look at what kinds of work created by architects fall under copyright protection. In particular, we will focus on the distinction between copyright in architectural drawings and copyright in the architectural design itself.

“Instruments of Service” as property
It is a commonplace concept that the architect’s drawings and specifications are intellectual property. The earliest owner/architect agreements published by the AIA more than 80 years ago described these documents as “instruments of service” and gave the architect control over their use:

Ownership of Documents—Drawings and specifications as instruments of service are the property of the Architect whether the work for which they are made be executed or not.

Why the AIA decided to use “instruments of service” terminology instead of “copyright” to describe the property interest in architectural drawings may be lost to history. By that time, architectural drawings were protectable by the federal Copyright Act of 1909, which explicitly covered drawings of a “technical character.” (The 1909 copyright statute was replaced entirely by the Copyright Act of 1976, which, with various amendments, remains in effect today.)

It is true that making the use of drawings a matter of contract, not copyright only, enables enforcement under breach of contract in addition to copyright infringement. That approach also avoids any notice and registration formalities required for copyright protection. In addition, mentioning in an owner/architect agreement the architect’s property right in drawings has the practical benefit of calling the owner’s attention to the issue. As described in the prior article in this series on the use of a copyright notice, it is usually better to prevent unauthorized copying than to try to recoup damages after it occurs. In any event, no one is particularly surprised when an architect objects to an owner’s reuse of the architect’s drawings for a new and different project, unless of course the architect has consented after negotiating acceptable terms.

The right to use as-built drawings
It is common for an owner to want to use an existing set of drawings for renovating the same building. Here the architect’s copyright in the construction drawings (including as-built or record drawings) runs head-on into an expectation by some owners that the drawings can be provided to another architect to create a set of base drawings of the existing building. Whether, under copyright law, a building owner can legally do this without the first architect’s consent isn’t clear. Some courts that have touched on this issue have been skeptical of copyright protection for drawings that simply show existing conditions.

In a 1994 ethics case, the AIA’s National Ethics Council considered a similar question: whether reuse of measured drawings by an owner’s second architect was a violation of the AIA’s Code of Ethics and Professional Conduct, apart from any copyright infringement. In its decision based on the circumstances in that case, the Council found no ethics violation.

It should be emphasized that any copyright in as-built drawings or specifications is only the right to control their reproduction. Copyright does not limit use of the single copy provided to the owner for building operation and maintenance. The owner owns that copy. It is the right to make additional copies, whether by copier, scanner, or redrawing, that may be limited by copyright.

Copyright protection for architectural design
Historically, although architects could prevent reproduction of their drawings under copyright law, that didn’t prevent anyone from looking at the building constructed from those drawings and then replicating the design in new drawings or in another building. Anyone with the technical expertise who had sufficient access to a building could construct a carbon copy without infringing on any copyright. With the possible exception of ornamental features that might be considered “sculpture,” any or all of a building’s feature’s could be copied. In 1990, that changed.

As noted in the second article in this series, Congress has amended the copyright statute over the last 20 years to conform to the Berne Convention, an international copyright treaty. As part of that process, the Architectural Works Copyright Protection Act of 1990 (AWCPA) extended copyright protection to architectural design itself. Buildings designed or constructed after 1990 fall under the category of an “architectural work,” which is defined 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 spaces and elements in the design, but does not include individual standard features.

It would be surprising if, upon first encountering the distinction between copyright in architectural drawings and copyright in the architectural design itself, you aren’t a bit puzzled. The distinction can be a brain-teaser both conceptually and when applied to particular circumstances. Once you do understand the concept, you may think copyright protection for architectural design is a great idea and properly recognizes the value of architects’ creative work. Note, however, there is no requirement that the work must be created by an architect to qualify for copyright protection.

It is probably too soon, in any event, to determine AWCPA’s ultimate effect on the profession because the practical details get worked out only as courts interpret and apply the law in actual cases in which infringement is claimed. In this context, the 19-year period since the statute was enacted is not a very long time.

Which side are you on?
It also should be noted that the majority of “architectural works” that you encounter are the copyright property of someone else—not your own. You are therefore at risk of infringing on someone else’s copyright when you solve a design problem by too closely replicating post-1990 work that you have seen in person, in photographs, or otherwise. Twenty years ago, the AIA did not support adding copyright protection for architectural design. In its comments to Congress prior to adoption of the 1990 statute, the AIA stated that the new law would do more harm than good, although the AIA did support adding a “right of execution” to copyrighted architectural drawings.

One of the issues apparent to Congress and others at that time was just how architectural a building design needed to be in order to qualify for copyright protection. The definition of “architectural work,” as adopted, doesn’t suggest any particular requirements for aesthetic, artistic, or poetic qualities. And, so far, courts have not refused to recognize copyright in building designs due to a lack of architectural quality. On the contrary, the bar has been set so low that any building satisfies the “architectural” requirement if it is permanent, stationary, and designed for human habitation or occupancy. One court has easily determined that a parking garage is protectable simply because it is a “permanent structure with a roof, and it encloses a space that is designed for a wide variety of human activities.” Not surprisingly, court cases alleging infringement frequently involve parties who produce speculative single-family houses or modular homes.

Another issue courts have not yet resolved is just how large a portion of an architectural work can be copied without risking infringement. (Think of republishing a single chapter of a book without the author’s permission.) One court has indicated that copyright protection exists “not only in the architectural work taken as a whole . . . but also in protectable portions of the work.” What the phrase “protectable portions” means in practical terms is yet to be determined.