Understanding the scope of architectural copyright protection
David H. Bowser is a design professionals/construction lawyer at Jordan Ramis PC.
This article originally appeared in the Practice Management Knowledge Community’s Practice Management Digest for December 2016.
“ In 1990, Congress passed the Architectural Works Copyright Protection Act (AWCPA) to protect the intellectual property of architects. … You cannot copyright an idea, only original expressions of that idea. Certain elements of architectural design are so common that they are, by law, unprotected.
In the first of a two-part series on copyright protection, discover the best way to limit infringement claims. In 1990, Congress passed the Architectural Works Copyright Protection Act (AWCPA) to protect the intellectual property of architects. In order to minimize accusations of infringement, there are certain things you should know about the scope of what is protected and how to protect yourself. While there is no surefire way to prevent infringement claims, there are ways to limit the chance of such claims occurring.
First, you need to understand the scope of protection for architectural works. Under the AWCPA, an architectural work is statutorily defined as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings,” and “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,” such as common windows, doors, and other staple building components. Accordingly, per the definition, while individual standard features and architectural elements classifiable as ideas or concepts are not themselves copyrightable, an architect’s original combination or arrangement of such elements may be.
There are two major elements that impact copyright claims:
You cannot copyright an idea, only original expressions of that idea.
Certain elements of architectural design are so common that they are, by law, unprotected.
To prove copyright infringement, a plaintiff must show: ownership of a valid copyright; and copying by the defendant of the protected elements of the copyrighted work. Copying may be established by showing that the defendant had access to the plaintiff’s work and that the two works are “substantially similar.” To determine substantial similarity, the court engages in a two-part inquiry: the allegedly infringing work must be both objectively similar (the “extrinsic test”) and subjectively similar (the “intrinsic test”) to the copyrighted work. The extrinsic test is an objective measure of whether the two works share clear, specific similarities.
While there is no surefire way to prevent infringement claims, there are ways to limit the chance of such claims occurring.
Even with these definitions, it can be confusing as to which parts of architectural plans are subject to copyright protection. A review of many cases of architectural copyright infringement shows that the level of protection for a functional building, for example, is rather thin. As one court described the problem, “some architectural designs, like that of a single-room log cabin, will consist solely of standard features arranged in standard ways; others, like the Guggenheim, will include standard features, but also present something entirely new. Architecture, in this regard, is like every art form.”
Because only the protected elements of an architectural plan can be compared when deciding whether substantial similarity and therefore copyright infringement has occurred, dissection of individual elements of the work is needed to determine the scope of copyright protection before the work can then be considered as a whole. An expert can be used to help with this dissection.
What’s not protected?
Unprotected elements of a copyrighted work can include: (1) ideas, as opposed to expression; (2) expressions that are indistinguishable from the underlying ideas; (3) standard or stock elements (called scènes à faire); and (4) facts and other public information. A related issue is the merger doctrine, which instructs that some ideas can only be expressed in a limited number of ways. When expression is so limited, idea and expression merge; expressions merged with ideas cannot be protected lest one author own the idea itself.
A review of many cases of architectural copyright infringement shows that the level of protection for a functional building, for example, is rather thin.
Features that are as a practical matter indispensable, or at least standard, in the treatment of a given idea are not protected by copyright. For example, Neoclassical government buildings, colonial houses, and modern high-rise office buildings are all recognized styles from which architects draw. Elements taken from these styles are not protected.
Likewise, certain industry standards or market expectations for homes or commercial buildings and design features used by all architects because of consumer demand receive no protection. Any design elements attributable to building codes, topography, structures that already exist on the construction site, or engineering necessity are not protected. Generalized notions of where to place functional elements, how to route the flow of traffic, and methods of construction are unprotected. There is no copyright in a building plan’s design parameters either, because constraints placed on an architect related to how the client plans to use the building do not originate with the architect.
In applying the extrinsic test, only those elements of a work that are protectable can be compared. Once the unprotected elements are filtered out and disregarded, the court considers the scope of the copyright. If few similarities remain after the unprotected elements are set aside, the scope is thin.
In summary, the level of copyright protection depends upon the subject matter and original creativity contained in the plans. One cannot copyright the “idea” of a kitchen. If that were so, only one architect could design kitchens. Small differences are usually enough to avoid copyright infringement, but as the complexity of the design increases there should be equally significant differences between plans to ensure no copyright infringement is occurring. “
U.S. Copyright Office
17 U.S. Code § 102 – Subject matter of copyright: In general
An “architectural work” is 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.
17 U.S. Code § 101 – Definitions
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