Rarely do we see a set of plans anymore that does not have some kind of copyright notice or indication of ownership of the plans or the copyright. While this is good, it is certainly not enough. Copyright is a valuable asset. To get the full benefit from this valuable asset – and to ultimately use it to actually protect yourself – it takes a few more steps than simply putting a copyright notice (©) on your plans. You must register your plans with the United States Copyright Office in order to enjoy the true benefits of your intellectual property.
Why Register Your Copyright?
There are a number of reasons why you should register your copyright. Not registering your copyright is like buying a house, receiving the deed, but never recording it with the county recorder’s office. Sure, you own the house – but nobody can tell that from checking with the recorder’s office. Registering your copyright works much the same way. While the general rule is that, as soon as you create a plan, you own the copyright (see exceptions below), you need to register that copyright in order to assert your ownership of it. You need the registration in order to enforce (i.e., sue for enforcement) your copyright.
How to Register Your Copyright
Registration can be accomplished a couple of different ways. There is, of course, the old fashioned way of filling out a form and mailing it to the copyright office along with a sample of your plans and the requisite fee. There is also an online form that you can fill out, upload the sample (called a “deposit”), and pay the fee online.
One important issue that applies to either method of application and registration is that you can only use one application for each “type” of registration. For example, you can register a set of plans as an architectural work and also as a technical drawing. Each type of work requires a separate form and application.
What is an architectural copyright?
There is no better way to define what an architectural copyright is than to look at the definition straight out of the copyright code:
- “[T}he design of a building as embodied in any tangible medium 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.”
That mouthful could only have been written by a lawyer or a politician – let’s break it down a bit. - “[T}he design of a building”: These five simple words bring with them a lot of different meanings. The design (as clarified later in the definition) includes the “overall form as well as the arrangement and composition of spaces and elements.” It is the artistic element that you became architects for; it is the floor plan and positioning of rooms in a certain order. It does not include the standard features. So, the strategy of putting the door in location “A” relative to the window across the room is a protectable aspect of the design, but the door and window themselves are not individually protectable (at least not as architectural copyrights). Then we have the term “building” and what that might mean. It includes any structure that is habitable by humans and intended to be permanent. Of course, this includes houses, but it also extends to offices, churches, and even garden pavilions and gazebos.
- “[A]s embodied in any tangible medium of expression”: This is the type of language that gets copyright attorneys all excited and gets their heart rates up. This language is what leads us to what is known as the idea/expression dichotomy. That is just a fancy way of saying that copyright protects the expression – not the idea. Which is a convoluted and vague way of saying that copyright doesn’t protect what is in your head – it only protects what you put down on paper, on the computer, or build.
- “[II]ncluding a building, architectural plans, or drawings”: In 1990, the federal government passed the Architectural Works Copyright Protection Act (“AWCPA”). This was the federal law that extended copyright protection to architectural works. One of the more significant aspects of that law is that it not only protects the drawings (which could be protected even before the AWCPA), but it also protects the building itself. After all, what could be a more tangible expression of a building design than the building itself?
As mentioned in the first paragraph above, the general rule is that, as soon as you create the plan, you own the “copyright.” But of course there are exceptions. The two biggest exceptions fall under a doctrine called “work made for hire.” Anything made by any employee in the course and scope of their employment is a “work made for hire” and belongs to the employer. But also outside of the employer-employee context, if your written contract with your client specifically states that the plans are a “work made for hire,” then your client will own the copyright, not you.
Really…is all this worth it?
Let’s first respond with making sure we know what “all this” is. Once you go through the tutorial on the copyright web page (and especially once you’ve registered a couple of plans), registration will take you about 20 minutes per set of plans and will cost you all of $35. While the disclaimer below tells you that nothing in this article should be deemed specific legal advice as to any situation, we normally tell our clients to register their plans at the end of design development (DD) and just before construction documents (CD). At that stage, there is normally a floor plan and elevation – that is all you need for the architectural copyright registration. Remember, it protects the overall form as well as the arrangement and composition of spaces. Generally speaking, these are all fairly well fixed at the end of the DD phase.
You may be sitting there and thinking – OK, it doesn’t take a lot of time or money, but am I really worried about the client or another architect stealing my plan? Setting aside the fact that it certainly does happen, there is an even more important reason to register. Allow me to present this to you as a hypothetical situation: Joe the client hires you to design his new mixed use retail and residential building. Everything is going fine: you deliver schematic designs and get paid, you deliver design development and get paid. You deliver your 50% construction documents and DO NOT get paid. Oops. OK, I’m sure Joe will pay soon. You deliver your 90% construction documents, and Joe the client still doesn’t pay. Other than begging and pleading what else can you do?
Well, assuming you haven’t given away your copyright (remember the work made for hire doctrine above), you can assert your copyright. While this would normally start with a letter, and you don’t need to have registered your plans to write a letter, the key to registration is timing (we’ll get back to that in a moment).
So you are sitting there unpaid, continuing to work, and client Joe has a nearly complete set of plans. Because, in our hypothetical this was a mixed use project, you know that Joe has invested an amount of time and money getting planning approval and probably a myriad of other early project elements satisfied. And to some extent, those approvals may have been based on your early plans. By that point in time, client Joe is quite invested in this project – and, by asserting your copyright, you are telling him that he can’t build from your plans unless he works with you, solely because you hold the copyright. Imagine it: approvals are going to run out, he has spent a lot of money, maybe even gotten investors, and now he basically doesn’t have a project to build any longer. I can’t imagine much that gets an owner to pay a bill faster than finding out that he can’t build his project any longer.
But of course, all this comes with risk. If you assert your copyright, rest assured the owner will try to assert something back against you – be it delay, defective plans, over-billing, something. Secondly, it’s not wise to “cry wolf.” If you are going to assert your copyright, you will want to be ready to follow up if (read: when) the owner ignores you.
And that takes us back to the timing discussed above. If you register before the plans are “infringed,” you get a choice of what kind of damages you want to pursue. You can choose between statutory damages (ranging anywhere from $200 to $150,000 for each act of infringement depending on various factors) and actual damages (the fee you would have charged and possibly the profit of the infringer). But perhaps one of the most valuable aspects is that registering before infringement allows for recovery of your attorneys’ fees if you prevail. So, if you are forced to go all the way and win, you may recover your attorneys’ fees. If you wait until after infringement to register, it is virtually impossible to get attorneys’ fees for the copyright infringement. And don’t kid yourself, that threat of attorneys’ fees has settled many cases short of trial. So, if you are owed a few thousand dollars on your project, that $35 investment in registering your plans sure will seem like a good idea.
There you have it – the who (you), when (at the end of DD), where (www.copyright.gov), what (register your plans), why (because a $35 investment may get you paid), and how (follow the tutorial). Yes, you own it when you create it, but to really make it worth something, to really make it work for you, you need to make it official and register your ownership.
Please contact us at either the South Pasadena or Orange offices to discuss further.
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David Barker, Esq. 1100 El Centro Street South Pasadena, CA 91030 Phone: (626) 243-1100 Fax: (626) 243-1111 dbarker@ccmslaw.com www.ccmslaw.com |
Clay Wilkinson, Esq. 1100 El Centro Street South Pasadena, CA 91030 Phone: (626) 243-1100 Fax: (626) 243-1111 cwilkinson@ccmslaw.com www.ccmslaw.com |
Nothing contained within this article should be considered the rendering of legal advice. Anyone who reads this article should always consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.
