When an architect creates a design, who owns the rights to that work? Who has the copyright on that design?
These are typical questions from architectural professionals, especially those working for large architectural firms. Does the architect own the copyright or does the firm own it? The answer is, “It depends.”
Intellectual Property Law 101
Intellectual property is property that exists as an idea rather than as a physical thing. Most intellectual property is recorded in such a way that others can express and exploit that idea.
Copyright is a form of intellectual property, as are trademarks, patents, and trade secrets. Copyrights are a creator’s exclusive set of rights to the expression of an idea in tangible media. The resulting media is often referred to as “a work.” Architectural and engineering drawings, photographs, and other original works can be covered by copyright.
The set of rights copyright ownership of a work bestows is as follows:
- The right to reproduce the work
- The right to create derivative work
- The right to distribute those work
- The right to publicly display the work
- The right of digital transmission of the work
When an architect produces an original work, who owns the copyright? While the Copyright Act of 1976 states “…copyright ownership vests initially in the author or authors of the work,” if the work is produced for hire, the copyright devolves to the entity that did the hiring. In many cases, the copyrights of works created by employees belong to the employer.
Who Owns the Copyright on Architectural Output?
If an architectural firm hires an architect as an employee, and the employee produces an original work, that work is considered to be performed for hire. The architectural firm holds the copyrights to the work.
However, if the architect is an independent contractor, copyright ownership remains with the architect. If your firm requires the copyrights, they must be transferred according to a written contract. You must strike an agreement between your firm and the independent contractor to obtain ownership of the copyrights. Preferably the contract is signed by both parties before the production of the work begins, placing it more on par with work for hire.
What if the architect produces the original work on his or her own time? Generally, as long as the architect did not use any of an employer’s resources, the copyright remains entirely with the architect.
- If the architect requests permission to use employer resources such as a computer, printer, cutter, or another resource, and reimburses the employer for expenses incurred, such as modeling supplies, paper, or courier, the architect may retain ownership of copyright.
- If any resources were used without permission or expenses were not reimbursed, the firm is fully within its rights to claim copyright ownership of any work the architect produces using those resources and supplies.
Copyright Infringement and Protection
Infringement is the act of breaking the terms of copyright. Copyright infringement involves the reproduction, creation of a derivative work, distribution, public display, or digital transmission by someone other than the copyright owner.
With Copyright Registration
To pursue a remedy for copyright infringement, you must be able to prove ownership of the copyright. The best way to protect ownership is to register the work with the US Copyright Office as soon as possible, so in the future, you will have an easily proven record of ownership.
Registered copyright owners may be able to receive statutory damages up to $150,000 per infringement, plus attorney and court fees, all without proving actual damages suffered.
Without Copyright Registration
Without a registered copyright to rely on, the ownership of copyright must undergo various forms of scrutiny before copyright ownership if proven. An initial analysis is performed to determine when the work was first published.
The Copyright Act allows a court of law to impose statutory damages for copyright infringement if the infringement occurs after the date of registration or if registration is filed within three months of first publication. For federal litigation to proceed, copyright must be registered.
Copyright Infringement Cases
Copyright infringement cases involve:
- A claim for lost profits in the form of actual damages
- A claim for any additional profits of the infringer
- An injunction against the infringer to prevent further infringement of the copyrighted work
Proof of an infringer’s profits is difficult; the Copyright Act allows the copyright owner to use the infringer’s gross revenue as it was claimed on a tax return as the basis for damages.
Whether you have registered your copyright or not, placing a copyright notice on all plans and drawings will go a long way towards discouraging others to infringe on your copyrights. For plans and drawings lacking a copyright notification that did not originate with your firm, you can still be sued for infringement if you use them without permission.
Copyright ownership of architectural plans and drawings may not be clear at all times. To protect your firm’s assets, you should take the step of registering copyright as soon as possible.
So you don’t get pulled into court as an infringer, provide clear, contractual guidance to all architects with whom you work, whether they are employees or independent contractors, about who owns copyright to work they produce.