In order to avoid potential copyright infringement claims, individuals in the design and construction fields need to be aware of the protections afforded under U.S. copyright law not only to designs, but to constructed architectural works.

  • Prior to 1990, U.S. law only provided copyright protection to architectural designs – not to constructed architectural works. That changed in 1990, when the U.S. Congress enacted the Architectural Works Copyright Protection Act, which, among other things, extended copyright protection to constructed architectural works.
  • An “architectural work” subject to copyright protection is defined as “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.”
  • Certain “standard features” of an architectural work are not  protected under copyright law, including functional requirements based on building codes, zoning requirements, functional demands and available technology. The standard features also include scènes à faire (a common term in copyright with other types or works), which are elements that are common, if not indispensable, in a genre. Examples of scènes à faire in house plans would be the arrangement of the rooms: for example, the kitchen is always close to the dining room, and the bedrooms will usually be clumped together and near a bathroom.
  • When an owner or contractor contracts with an architect or designer to design a project, in the absence of an assignment of the copyright, the architect remains the owner of the copyright, and the owner or contractor merely obtains a non-exclusive license to use the plans for that specific project. That means, in the absence of an assignment, the architect will retain the ability to use the designs and plans on other projects for other clients, while the owner or contractor will not be able to use those designs and plans on any other projects.
  • The copyright protection of architectural works is also limited in two other significant respects. First, the owner of a copyright in a building that is visible from a public space cannot prevent others from making, distributing or displaying photographs of the building. Second, the owner of a copyrighted building is free to make alterations to the building or to destroy the building without the consent of the copyright owner.
  • Copyright protection attaches from the moment an architectural work is created. It is generally not necessary for an architectural work to be marked to indicate that it is subject to copyright protection, nor does the owner need to have a copyright registration, for the owner of the copyright to claim copyright protection. Additionally, lack of knowledge that an architectural work is subject to a claim of copyright protection is not a defense to infringement.

A copyright registration is required to file suit for copyright infringement, but can be obtained after the infringement first takes place (although the owner may benefit from timely registration of a copyright in an architectural work). Design professionals should take care to consider these issues, both to protect their own work and to avoid copyright infringement claims.