Every Player In The Construction Community Needs To Understand Intellectual Property Rights

When most people hear "intellectual property" and "copyright protection" their eyes begin to glaze over. After all, these topics are often confined to think tanks and court rooms, right? Wrong; every player in the construction community (not just architects) need to be aware of what constitutes a protected creative work, what mechanisms exist to assist in this protection and how the digital age affects the landscape.

According to Circular 41 from the US Copyright Office, an original design of a building created in any tangible medium of expression, including a constructed building or architectural plans, models, or drawings, is subject to copyright protection as an “architectural work” under section 102 of the Copyright Act (title 17 of the United States Code), as amended on December 1, 1990. Protection extends to the overall form as well as the arrangement and composition of spaces and elements in the design but does not include individual standard features or design elements that are functionally required (example: doors, windows). The term “building” means structures that are habitable by humans and intended to be both permanent and stationary, such as houses and office buildings and other permanent and stationary structures designed for human occupancy, including, but not limited to, churches, museums, gazebos, and garden pavilions. The law does not apply to bridges, cloverleafs, dams, walkways, tents, recreational vehicles, mobile homes, and boats.

Prior to the Architectural Works Copyright Protection Act of 1990, only original drawings and plans for buildings were protected. The act extended protection to architectural works built from the plans. This means copyright owners can go after infringers not just for violating the copyright of the plans, but also for the profits on buildings created from them. According to a case study in Upscale Remodeling (Winter 2008), William Hablinski, founding partner of Hablinski Manion Architecture in Los Angeles, designed a $20 million, “jewel box” home in Bel-Air, California, for real-estate mogul Fred Sands. In 2003, Hablinksi's employees noticed an almost identical house under construction in Beverly Hills. Hablinski investigated and discovered that his former draftsman was involved. Hablinski, who said he spent 3,800 hours designing the Sands' home, filed a suit in 2005 against the builders (who were also the owners) for copyright and trademark infringement, among other complaints. His legal team also turned up more evidence of pilfered plans. In 2006, a jury in Los Angeles awarded Hablinski $5.9 million — $380,000 in design fees, $500,000 for damage to his reputation, and about $5 million in estimated profits on the house.

So how does the age of digital media change things? It does and it doesn't. The essence of copyright is simple: You own the rights to copy your own creations and you are entitled to benefit if someone else reproduces your work. While the Internet has made the distribution of plans simple and straightforward, plans, blueprints or blackline drawings cannot be copied or reproduced without prior written consent of the copyright owner. According to ehouseplans.com, "It is a common misunderstanding that making changes to or redrawing a plan found in a plan book is permissible. It is not. The right to modify plans is one of the exclusive rights of copyright. It is also illegal to copy or redraw a constructed home that is protected by copyright, even if you have never seen the building plans for the home. If you find a home plan that you like, you must purchase a set of plans from an authorized source." So in essence the Internet has made it easier to steal, but it has not changed the fundamentals of copyright protection.

So how do you protect your work?

According to Upscale Remodeling, there are eight ways to protect yourself:

* Adopt an intellectual property policy. Define what information you'll share and what you won't. Make sure your staff understands.

* Register your plans with the U.S. Copyright Office. It helps to have a lawyer do this, especially the first time you file. Fees typically range from $200 to $500.

* Broadcast your ownership. “Most homeowners think they own the plans,” says Scott Richert, an attorney in Nevada City, Calif., who specializes in construction law. “They only own the right to use the plans under certain conditions.” So, make that clear. Define what rights your clients will have with the drawings.

* Spell out ownership in contracts and include a copyright statement on all documents. Dick Ferrell Contracting in Rock Hill, S.C., uses a simple one-page design agreement that specifically states that the design is property of the company and cannot be used without written permission. All plans shared with clients are stamped “Not for construction purposes.”

* Limit the release of plans. Some remodelers don't give out plans or they omit dimensions and scale on plans shown to clients. Others don't give plans to clients until they've signed a contract or paid a fee.

* Make it in clients' best interests not to copy. Remind them that if someone else builds from your plans, this clouds liability and makes it difficult to resolve problems with the design.

* If the stakes are high enough, be prepared to sue. You stand to recover not just the time spent on design, but the appreciated value, rents, and profits of buildings from a copied design.

* Beware of bidding off someone else's plans. If you build from an infringed set of plans, you're liable whether or not you knew the plans were stolen. For that reason, architect Cinda K. Lester, with 12/12 Architects & Planners in Downers Grove, Ill., asks not to see sketches or drawings if she meets with a client who has fired another architect or builder.


Useful Links:

* http://www.copyright.gov/circs/circ41.pdf
* http://www.ehouseplans.com/copyright_law.html
* http://www.copyright.gov/
* http://en.wikipedia.org/wiki/Copyright