CONSTRUCTION LAWLETTERS

FOR INDUSTRY PROFESSIONALS, MANAGERS, TRADES & SUPPLIERS

J. NORMAN STARK, ATTORNEY-AT-LAW

JURIS DOCTOR, B. ARCHITECTURE, B.F.A

Vol. 1, Issue 8xx Extra  March, 1998

WHO "OWNS" THE ARCHITECT'S OR DESIGNER'S DRAWINGS?
CONSTRUCTION DOCUMENTS AND COPYRIGHT PROTECTION

Copyright protection of construction documents is afforded under the provisions of the Architectural Works Protection Act of 1990. Construction documents, generally consisting of drawings, specifications, bulletins and addenda, are known as "architectural work"; Federal statutory law has further defined this term. "Architectural work" consists of: "…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."

Standard features may include certain, specific attributes peculiar to the use or function of a given facility or structure. For example, standard features of indoor soccer facilities may include: soccer field(s), dasher boards, pro-shop, video room, concession stand, offices, team benches, scoreboards, spectator bleachers, team and public toilet rooms, mechanical, heating, cooling, and ventilating systems, plumbing, electrical systems, etc. The arrangement and composition of standard features, as well as non-standard features, may distinguish any given architectural work.

Copyright law protection is afforded to: " original works of authorship, fixed in any tangible medium of expression." The U.S. Supreme Court has defined "original" to mean: "…that the work was independently created by the author and that it possess some minimum degree of creativity. The requisite level of creativity is extremely low, even a slight amount will suffice." Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340 (1991).

Copying of original, creative ideas, is prohibited. Infringement may be found if two works are substantially similar, judged by the "ordinary observer" test. A basic premise is that the law protects only the expression of an idea, not the idea itself. "…Thus, in order for there to be (copyright) infringement, the substantial similarity must be of the protectable expression and not the idea itself. *** The idea/expression dichotomy is very important for copyright protection of architectural works and home designs; obviously, placing a bathroom adjacent to a bedroom or walk-in closet in a master bedroom in a house are ideas not capable of copyright protection. Substantial similarity must be evaluated, instead, "on the basis of the original design elements that are expressive of the [designer’s] creativity." Raphael Winnick, Note, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41 Duke L.J. 1598, 1633 (1992).

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Author:  J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He has had experience in business, Construction, Real Property, Litigation and Construction-Legal Project and Crisis Management.

 


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