Real estate attorneys take head. Waiting from the tall grass of your customer’s property development project might be a thorny copyright problem that may cost your customer all the gain it earned on the undertaking, and would likely buy you a critical malpractice case.
In the course of creating a real estate project, while it’s a residential community or a commercial job, a fundamental part of the job is the architectural strategy. Unless the programmer (and the programmer’s counsel) are aware of the way the Copyright laws affect what the developer can (and more importantly, can’t) do with the program, the developer may find itself on the receiving end of a Copyright violation lawsuit. Why? As an architectural strategy, as well as other architectural works, are protected under Copyright laws, and such laws govern who owns the plans and what can and can not be carried out with the strategy.
The Reach of Protection Granted Architectural Works
In 1990, Congress enacted the Architectural Works Copyright Protection Act (the “Act”). The Act increased the scope of protection architectural works are eligible for under United States Copyright laws. The Act was passed in attempts to make the United States Copyright laws more harmonious with the Berne Convention For The Protection of Literary And Artistic Works.
According to a report prepared by the then Register of Copyrights, pre Act copyright laws provided adequate protection for architectural blueprints, plans, drawings, and models. However, the adequacy of defense under Berne Convention criteria for the constructed design of architectural constructions was in doubt. Although the Act, when it was in Bill form, was meant to deal with this perceived gap, the legislative history provides us with insight into the intended range of protection accorded to architectural works, such as patterns and plans. Get an estate lawyer today!
The Act amended the definition part of the Copyright Act (17 USC 101) by adding the following definition of”architectural works:”
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 layout but does not include individual standard features.
The House Report on the Copyright Amendments Act of 1990 (which comprises the Act) (the”Report”) provides a section by section analysis and discussion of this Act. In discussing the definition of architectural works, the Report identifies the components of a secure architectural work. The Report says that”protection does not extend to individual standard attributes, such as common doors, windows, and other secure building elements.” The Report makes clear, nevertheless, that the provision isn’t intended to”exclude from copyright protection any person feature that reflects the architect’s imagination.”
Commenting on the significance of”arrangement and composition of spaces and elements in the design” the Report noted that this phrase admits that creativity in structure frequently takes the form of selection, arrangement or coordination of unprotectable elements into a first, protectable whole and an architect may incorporate fresh, protectable components into standard characteristics that might not otherwise be protectable and create an original, protectable entire. Hire a professional real estate lawyer kitchener today!
The Report lays out a two-step investigation to be participating in when determining the reach of protectability to get an architectural function.
First, an architectural job ought to be examined to ascertain whether there are first design elements present, such as overall shape and interior design. If such design components are found, a second step is attained to examine if the design components are functionally required. If the design elements are not functionally required, the work is protectable without respect to physical or conceptual separability.
Security would be denied for the determined elements but would be accessible for the nonfunctional components. The Report states that courts should be free to determine the level and scope of protection, and evidence that there’s more than 1 method of obtaining a given functional result may be considered in evaluating the range of protection. The Report notes that the Act incorporates the overall standards of creativity applicable for all other copyrightable subject matter, and also the determination of breach is to be made according to the same standard applicable to all other forms of protected mater.
The Way Problems of Infringement Can Arise and How to Avoid Them
Poor preparation and a lack of understanding can lead to a programmer finding itself in hot water regarding architectural strategies. Just because a programmer paid an architect to come up with drawings does not mean that the developer can do anything it needs with the drawings. Granted, case law has held that in certain circumstances the developer may have an implied license to perform the acts which are the subject of the infringement suit. However, defending an infringement claim can be quite expensive. Preventing the problem from arising will be a lot easier on the pocketbook. Talk to Varun Sharma here.
Anytime your client is working with an architect, make sure that there is an engagement letter in place and it’s clear on just what can and can’t be done with programs or other drawings created by the architect. Also, make sure the engagement letter is crystal clear on exactly who owns the plans. I’ve seen participation letter from architects that say that the architect is the person who owns the copyright from the design and that any contributions from the programmer to the program is a work made for hire and made on the architect’s behalf. Provided that the programmer understands the implication of those provisions, major problems can be prevented. Representing developers, I’d rather have my customer own the rights to its own contributions. I can only imagine the horror a developer would experience upon finding out that the architect he worked with in creating a completely distinctive floor plan is now selling the plans to each of the other significant builders in the area.
Developers can find themselves facing copyright infringement issues if they change architects mid-project and continue to utilize the drawings generated by the architect. To maintain the best to do so, the programmer should be certain that this right is specifically allowed from the engagement letter. Usually, most reasonable architects will permit the programmer this right in exchange to be indemnified against any claims associated with work performed by the new architect.
Some participation letters I have observed from architects allow a programmer to freely reuse a plan or other drawing without needing to cover a reuse fee as long as it’s used for the identical development. If a developer wants to reuse a drawing multiple developments, the programmer should bring up that as soon as possible and ensure it finds its own way to the letter.
The real estate developer and his counsel should provide critical consideration of how to incorporate the demands of the Copyright laws to the organization’s best practices. While handshake deals continue to be commonplace in the real estate and building industries, they simply won’t cut as far as the Copyright laws are concerned.