Copyright Protection for Architectural Plans and Buildings

By Hank FasthoffFebruary 21, 2017

Architectural plans and the building design they depict are separate works under copyright law. The same architect or firm may own both copyrights, but that result isn't automatic. Employment, joint authorship, assignments, licenses, and project contracts may divide the rights among an architect, developer, owner, contractor, or design firm.

Owning the plans or the physical building also doesn't establish ownership of every related copyright. A project file should identify the author of each work, every written transfer, the permitted uses, and the party responsible for registration and enforcement.

Plans and Building Designs Receive Separate Protection

Section 102 identifies pictorial, graphic, and sculptural works and architectural works as separate categories of copyrightable subject matter. Technical drawings, blueprints, models, and architectural plans may qualify as pictorial, graphic, or sculptural works. An architectural work is the design of a building embodied in a building, plans, drawings, or another tangible medium.

Those categories protect different expression. A technical drawing registration covers the drawing, including its copyrightable diagrams, illustrations, and text. It doesn't cover the architectural work depicted in the drawing. An architectural work registration covers the building design and may support an infringement claim based on unauthorized construction, but it doesn't register the drawing as a separate pictorial work.

The Copyright Office therefore requires separate applications when an owner seeks registration for both works. Circular 41 and Compendium Section 926 state that the same deposit materials may support the applications even though the claims must be registered separately.

Architectural Copyright Covers Original Design Choices

The statutory definition protects a building's overall form and the arrangement and composition of spaces and elements. It excludes individual standard features. Copyright Office guidance identifies windows, doors, staple building components, standard room configurations, purely functional engineering or construction features, and movable interior decoration as examples outside an architectural work claim.

Section 102(b) also excludes ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries. Building codes, lot dimensions, engineering requirements, customer instructions, market expectations, and common architectural styles may limit the available design choices. Copyright protects the architect's original expression within those constraints rather than the constraints themselves.

In Zalewski v. Cicero Builder Development, Inc., 754 F.3d 95, 105-07 (2d Cir. 2014), the Second Circuit treated colonial conventions, common room placement, consumer preferences, lot restrictions, and functional design choices as unprotected. Similarities based on those elements didn't establish wrongful copying of protected expression.

The Statute Protects Qualifying Buildings

The Copyright Office registers designs for structures that are intended to be permanent and stationary and are designed for human occupancy. Houses, office buildings, churches, museums, gazebos, and garden pavilions qualify. Bridges, cloverleafs, dams, walkways, tents, recreational vehicles, and boats ordinarily don't.

Whether a structure qualifies depends on its characteristics rather than its label. In Moser Pilon Nelson Architects, LLC v. HNTB Corp., No. 3:05-cv-00422 (MRK) (D. Conn. Aug. 8, 2006), the court held that a university parking garage qualified as a building because it was permanent, stationary, and designed for human use. Designs for interior storefronts and freestanding kiosks require separate analysis because a design inside an existing building may not itself qualify as a building.

The Architectural Works Copyright Protection Act applies to architectural works created on or after December 1, 1990. It also covers a design that was unconstructed and embodied in unpublished plans or drawings on that date if the building was constructed by December 31, 2002. The older technical drawings may retain protection even when the building design falls outside the Act's effective date provisions.

Authorship and Ownership Require a Project Specific Review

Section 201 places initial ownership in the author or authors. For an architectural work, the author is ordinarily the person who created the building design. When an employee prepares the work within the scope of employment, the employer is treated as the author and initial copyright owner unless a signed agreement provides otherwise.

The result differs for an independent architect. The nine commissioned work for hire categories omit architectural works as such. A contract label alone can't transform an ineligible independent contractor design into a work for hire. A signed assignment addresses ownership without depending on that classification.

Section 204 requires a signed writing for an assignment or exclusive license. A nonexclusive license may arise from words or conduct under federal copyright law, although state contract law may impose a writing requirement in a particular transaction. Reliance on an implied license leaves the parties to dispute its scope, duration, payment terms, transferability, and permitted revisions.

Multiple designers don't become joint authors merely because they worked on the same project. The statutory definition requires two or more authors to prepare contributions with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. Design agreements should address contributions, revisions, consultant materials, preexisting components, and assignments before those questions affect construction or reuse.

Building Ownership and Copyright Ownership Are Distinct

Section 202 separates ownership of copyright from ownership of the material object in which the work appears. Buying land, a completed building, printed plans, or a digital drawing file doesn't by itself transfer the copyright. A copyright transfer likewise doesn't convey ownership of the physical building or plans without an agreement addressing that property.

Project contracts should identify the permitted uses with precision. Relevant terms may cover construction of one building, construction at a named site, modifications, completion by another architect, use by contractors and consultants, marketing images, maintenance records, future phases, reuse on another site, and transfer after a sale or foreclosure.

A developer or owner may have enough permission to complete one project without holding the copyright or possessing a right to reuse the plans elsewhere. An architect may retain copyright while granting a license broad enough for construction, operation, repair, expansion, or sale. The written terms govern those differences.

Infringement Requires Copying Protected Expression

Copyright infringement analysis separates copying from unlawful appropriation. Access to plans and similarity between buildings may support an inference of copying, but liability requires copying of protected expression. Standard features, functional requirements, common styles, and design choices dictated by the site or client remain outside the comparison.

A claim may concern reproduction of drawing files, distribution of plans, preparation of unauthorized revisions, or construction of a substantially similar building. The asserted registration must match the work at issue. Registration of a technical drawing alone doesn't supply an architectural work claim based on construction of the depicted building.

Contract rights may be narrower or broader than the copyright claim. A licensee may breach a promise about payment, attribution, project location, or reuse without copying protectable expression beyond the license. Conversely, a party may infringe copyright even when no contract exists between the parties. The pleadings, registrations, contracts, design history, and comparison of protectable elements determine the available claims.

Photographs and Building Alterations Have Statutory Rules

Section 120(a) permits the making, distribution, and public display of photographs, paintings, and other pictorial representations of a constructed architectural work when the building is located in or ordinarily visible from a public place. The provision doesn't authorize copying the plans or constructing another building from the design.

Section 120(b) permits the owner of a building embodying an architectural work to alter or destroy the building without consent from the architect or copyright owner. This rule concerns the architectural work and doesn't eliminate separate contractual restrictions, preservation laws, or rights in artwork incorporated into the structure.

The Visual Artists Rights Act may protect a qualifying painting, sculpture, or other work of visual art installed in a building. Sections 106A and 113(d) govern attribution, prejudicial modifications, destruction of works of recognized stature, removal notices, and written agreements for artwork whose removal would damage it. Construction and installation agreements should address those rights separately from the architectural copyright.

Registration Should Match the Rights at Issue

An architectural work application should identify the architectural work as the authorship being registered. The deposit ordinarily includes a complete copy of the most finished architectural drawing showing the overall form and any claimed arrangement of interior spaces. For a constructed building, Copyright Office guidance also requires photographs showing several exterior and interior views.

Publication has a specialized meaning in this context. Distributing plans or other copies of the building design to the public by sale, transfer, rental, lease, or lending may publish the architectural work. Construction of one building doesn't constitute publication for registration purposes, but the regulation treats construction of multiple copies as publication.

The registration record should match the author, claimant, completion date, publication status, ownership documents, and version asserted in a dispute. Separate applications for the technical drawings and architectural work preserve the distinction between the documents used to communicate the design and the building design embodied in them.

Architectural projects join copyright law to contracts, property ownership, construction, and professional practice. A complete rights file identifies each protected work, its author, the current owner, every assignment or license, the permitted uses, and the registrations supporting enforcement. That record allows architects, developers, and building owners to use the design without assuming that ownership of one asset includes every related right.

Stephen Lewis provided input and wrote portions of the original article.