Vol. 11 No. 1		January 1992

It was an enormous victory for the design professions. For years, copyright protection had been limited to the graphic or pictorial representations of your design. Effective December 1, 1990, that protection was extended to include the design itself. This welcome development came about because the United States signed an international treaty known as the Berne Convention, and the 101st Congress was faced with the task of bringing U.S. copyright laws into compliance. The result was the Architectural Works Copyright Protection Act of 1990.

The new law protects your design, but not your ideas. Copyright protection does not extend to the use of materials in a new and creative way, for example. It does include the overall shape and form of your buildings and the unique arrangement and composition of the spaces you design. This is long awaited good news. But it cuts both ways.

Your design is now protected against unauthorized copying, modification, and the creation of derivative works by others. You cannot, however, use the copyright laws to prevent an owner from making modifications to his or her building. You cannot even prevent its destruction (any more that an author can prevent you from feeding pages from a book you own to pet termites). Nor can you protect against the making and distribution of paintings or photographs of a building you design if it is located in or ordinarily visible from a public place.

Only architectural works intended for human use or occupancy are covered by the new law. This includes homes, office buildings, shopping centers, churches, gazebos, and pavilions. Highways, bridges, dams, and walkways are not protected. Nor are 1) individual standard features, such as common doors, windows, and other building components, or 2) functionally required design elements (where, for example, only one solution is possible).

The "author" of an original work owns the copyright interest in it. An author is the person or entity that controls and directs the creation of the work. A partnership or a corporation may be the author of a work if it is a "work made for hire," generally one created by an employee in the scope of his or her employment. Note, however, that the employee/employer relationship must be clear in the traditional sense. An independent contractor may be considered to be the author of an original work unless the work is contracted for as a "work made for hire," or, alternatively, unless the independent contractor's copyright interest is transferred to you by written agreement.

Not only do you enjoy new protections, but those protections have real teeth. Infringement of your copyright can entitle you to 1) actual damages sustained, 2) any additional profits earned by the infringer as a result of the infringement, 3) statutory damages of up to $20,000 per infringement (or up to $100,000 if the infringement is willful), and 4) attorney's fees and costs.

So much for the legal background and technicalities. What does the new law mean to you, and what should you do about it? Consider these implications:

1. Your design has more tangible value today than it did a year ago, not only to you, but to your clients, as well. As a result, you can expect your clients to become more strident in their demands for ownership of your documents as the full impact of the changes in the copyright law percolate through the bar into owner-drafted contracts. Do not despair. This new value increases your negotiating leverage. It can have a positive influence on fees and on their collection, and it should enhance your ability to secure the concessions you must have if you find yourself with little choice but to cave in on the issue of ownership.

2. It is far easier now to infringe someone else's copyright, and this will require more attention on your part than it has in the past. You will want to be particularly cautious in supplanting another architect or engineer, and the question, "Who owns this design?" simply has to be asked when you are handed a set of drawings and requested to help a new client with the replication of an existing space on two more floors.

3. Some owners have long sought indemnification for copyright infringement, and it has never been a great idea to go along. But the stakes are higher now, and you can expect the demands to escalate. Approach them with new caution. You may be able to live with an indemnity against willful infringement; this is something you presumably can control. Unwitting infringement is another matter. Some, but not all policies of professional liability insurance exclude coverage for copyright infringement, even where it arises out of negligence. Coverage can often be found under general liability policies, but these policies do not cover professional acts, nor do they protect against economic loss.

4. Refocus your attention on the agreements you sign with "independent contractors," especially those whose independent status is more of an accommodation on your part than a true prime/consultant relationship. If you intend the results of their efforts to be "works made for hire," your written understandings should clearly reflect that intent. Similarly, the ownership of documents provisions you negotiate with your consultants should reflect a clear meeting of the minds, and they must be consistent with your agreement with your client.

5. Finally, look for alternatives which will better enable you to negotiate your agreements. Conceding ownership in return for indemnification is but one option. A license to use your documents for a carefully defined and limited purpose may be preferable, and a license may be perfectly adequate to address most client concerns. Consult your attorney on this. The issues are complex, and getting it right can be important to you.

You are no longer required to place a copyright notice on your works, nor are you required to register your copyright. The protection of the law is afforded whether you do so or not. There are good reasons, however, to consider both.

Notice of copyright--on your title block, the cover sheet to your specifications, and on labels used to identify your tapes and disks-is easy to post, and it serves as a clear warning to others. It can eliminate the argument that an infringement was unintentional. All you need to do to post notice is to print 1) the copyright symbol (or the word "Copyright"), 2) the year the work was created, and 3) the name of the copyright holder on your documents and disks.

Registering a copyright with the Copyright Office is not quite as simple, but it is neither tedious, nor expensive. But, unless you register your copyright before an infringement occurs, you will not be entitled to statutory damages, and you may not be able to recover attorneys' fees and costs.

The choices are yours, and they are a luxury you can enjoy. They belong to you alone.