By Jane Tucker
Ownership of architectural plans belongs to the creator of those plans, not
to the person whose house is being built from those plans, in the absence of an
agreement to the contrary.
For example, Homeowner #1 retains and pays an
architect to design Homeowner #1's dream house, which is subsequently built
according to plans prepared by the architect. The architect puts the
copyright notice on each page of the plans, but does not register the copyright
with the U.S. Copyright Office. After the home is built, Homeowner #2
asks Homeowner #1 if she can use Homeowner #1's plans in building her new
home. Homeowner #1 gives Homeowner #2 the plans and Homeowner #2 makes
copies, changing only the name and address of the owner. Because
Homeowner #1 paid the architect for those plans he has the right to give them
to Homeowner #2 to copy and use in building another home - right? WRONG!
An original design of a building embodied in any
tangible medium of expression, including the building itself and the
architectural plans and drawings for the building, is subject to copyright
protection as an architectural work, regardless of whether or not the copyright
is registered with the U.S. Copyright Office. As affirmed by the U. S.
Circuit Court for the Fourth Circuit in Christopher Phelps & Associates,
LLC v. Galloway, 492 F.3d 532 (4th Cir. 2007) an architect that designs a
home owns the copyright in the plans that the architect creates. As the owner
of the copyright in the plans, the architect has the exclusive right to make
copies of the plans and allow others to use those plans.
In Galloway, the Court awarded the
architect $20,000 in compensatory damages which represented the amount that the
architect testified he would have charged the second homeowner who copied the
plans that the architect prepared for the first homeowner. The court,
however, refused to enter an injunction requesting that the homeowner be
enjoined from selling the house, on the grounds that once the homeowner paid
the damages of $20,000 to the architect, the plans and the resultant home
became a lawfully made copy.
This case illustrates several important
points. First it reaffirms that it is the architect, and not the
homeowner, who has the right to allow others to use architectural plans,
regardless of the fact that the homeowner paid for the plans. Second, if
the copyright is not registered with the U. S. Copyright Office, the
architect's damages may be limited to what he would have charged the second
homeowner for the plans. Third, if the copyright in the plans had been
registered with the U.S. Copyright Office, the architect would have been able
to recover statutory damages, which may be up to $150,000 if willful
infringement is found, plus attorneys' fees and costs.
Therefore, if you are the person or business that
contracts with another to design a building, you will not be owner of the
copyright in the plans or the building unless the designer agrees in writing to
assign those rights to you. If you are the architect and want to fully
protect yourself in the event of an infringement, then you should register the
copyright in the design so that you may recover statutory damages, rather than
having to prove actual damages.
These articles are meant to bring awareness to the topic and are not
intended to be used as legal advice. If you have questions about any of the
articles or any other related matters, please see the contact information
located at the end of each individual article.
Jane Tucker is an attorney with Vandeventer Black and concentrates her law
practice in intellectual property, information technology, ERISA,
employee benefits, commercial, and business transactions.
Jane's intellectual property and information technology practice
involves trademark and copyright registration, as well as protection,
sale and/or licensing of all forms of intellectual property, including
patents and trade secrets. Jane was recently named as one of Virginia
Business' "Legal Elite" in the area of Intellectual Property.
Jane's employee benefits practice concentrates on employee
benefits, particularly in the areas of COBRA, USERRA and qualified
domestic relations orders, with an emphasis on multiemployer plans.
Her business practice focuses on general business transactions related primarily to closely held entities.
Jane received a B.A. and J.D. from the College of William &
Mary, where she was a member of the School of Law's Board of Editors for
the William & Mary Law Review.
She is a member of the Virginia State Bar, Virginia Bar
Association and American Bar Association sections on Intellectual
Property. She is also a member of the International Foundation of
Employee Benefit Plans (IFEBP).
Jane is active in various community organizations.