U.S. Copyright Protection of Architectural Drawings and Works  

United States intellectual property law (known as “IP” law) is a three-legged barstool consisting of patents (protecting new and useful inventions), trademarks (protecting brand names, logos, and slogans), and copyrights (protecting works of original authorship). Today, we focus on copyright protection under United States law and, in particular, copyright protection of architectural drawings and works. But first, a few copyright basics.

What is copyright?

Copyright is a form of intellectual property protection provided by the US Copyright Act to authors of original works of authorship that are fixed in a tangible form of expression. Copyright protection against unlawful copying is provided by way of registration of the original work by the author with the United States Copyright Office, which is a division of the Library of Congress. Copyright ownership and registration affords the author the exclusive right to reproduce the work, distribute and sell the work, and to prepare derivative versions of the original work, such as sequels and prequels.

Works that can be protected by copyright include literary works such as novels and plays, musical works including any accompanying lyrics, motion pictures and other audiovisual works, and pictorial and graphic works. The term of copyright protection generally consists of the lifetime of the author, plus another seventy (70) years following the death of the author.

Copyright protection does NOT include protection for ideas and procedures, methods and concepts, works that have not been fixed in a tangible form that can be readily perceived by others, and titles of works, names, short phrases, and slogans.

The original author is the copyright owner, unless the work is what is known as a “work made for hire,” which is a work that is created by an employee as part of the employee’s regular scope of employment, or a work that is specially commissioned and created pursuant to an express agreement between the person or entity commissioning the work and the person who actually creates the work. An example of a work made for hire would be a portrait that is commissioned by a client and created by an artist pursuant to an agreement between the client and the artist that the work will be considered to be a work for hire.  The copyright owner of a work made for hire is not the individual who actually created the work, but instead is the person or entity who hired the individual artist or author. The term of copyright protection of a work for hire is 95 years from publication or 120 years from creation, whichever period is shorter.

How do copyrights apply to architectural drawings and works?

The Copyright Office will register a claim to copyright in an architectural work if the work is, or depicts, a humanly habitable structure that is intended to be both permanent and stationary. Examples would include residential dwellings (including house boats that are permanently affixed to a structure such as a dock), office buildings, churches, and museum buildings. Structures and equipment that are not eligible for copyright protection would be bridges, highway configurations such as cloverleafs, dams, walkways, tents, RVs, and non-affixed water vessels.

Importantly, copyright ownership in architectural works protects only the “original authorship” inherent in the work, and not the entire work taken as a whole. For architectural works, “original authorship” includes the overall form of the building, including the exterior elevations of the building when viewed from the front, rear, and sides, as well as the arrangement and composition of walls or other permanent structures that divide the interior into separate rooms and spaces. Copyright ownership and registration of architectural works does not protect the following elements: individual standard features of the work such as windows, doors, or other standard building components; standard configuration of spaces, such as a square or circular bathroom or a one-room “tiny house;” purely functional features, such as innovations in engineering or construction techniques; and elements of interior design and decoration, such as the selection and placement of furniture, lighting, paint colors, and floor and wall coverings.

Who owns the copyright(s) for architectural drawings and buildings?

The Copyright Office considers an “architectural work” to be both: (1) the technical plans and drawings of the structure; as well as (2) the structure or building itself, if the structure that is depicted in the architectural plans is actually constructed as designed. Thus, there is separate copying ownership in (1) the architectural plans; and (2) the building or structure itself. And importantly, one application to the Copyright Office can register and protect either the architectural drawings, or the building itself, but not both. Two separate copyright applications are necessary in order to protect both the drawings and the structure.

Who is the "author" of an architectural work?

The author of an architectural work is the person or persons who created the design of the building or structure, unless the work is a work made for hire, in which case the author is an employer such as an architecture firm, or a client, such as a residential owner who engages an architect to design a custom residence. Importantly, in order to avoid mistake, confusion, and legal issues down the road, ownership of the copyright of an architectural work should be determined and made clear in a contract between the parties before commencement of the design process.

Why do copyrights and contracts matter?

A clear understanding of copyright law is important for architects, engineers, designers, their employers, and their clients, because it helps everyone understand who owns a design and how it can be used. Copyright protection for architectural drawings and works is limited, and ownership can vary depending on the relationship between the parties. This can easily lead to confusion if expectations are not clearly set from the start. A solidly prepared contract between clients and architects helps avoid these issues by clearly outlining who owns the work, how it can be used, and what rights each party has.

If you have questions about copyright protection for architectural works, ownership rights, or drafting clear design agreements, the Sands Anderson Construction Team is here to help. 

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