Construction Law Briefs
Architects’ Drawings Are Subject to Copyright Protection

By Albert B. Wolf

Until a few years ago, architects had relatively little protection for their unique designs. In 1990, however, Congress passed the Architectural Works Copyright Act that gives copyright protection to architects' original designs.

The act defines “architectural works” as: “. . . 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.”

Since the law applies to visual effects, application is not a simple matter. In a case ruled on by New York Federal Judge Michael B. Mukasey (now the U.S. Attorney General), he ruled: (1) architectural designs are entitled to copyright protection even if they are not capable of construction; (2) that an original combination of nonoriginal designs could be copyrighted, and (3) the substantial similarity standard necessary for copyright protection is the “total concept and feel.”

That case is significant in several aspects. It involved an architectural student’s model of a tower entered in a competition that he claimed to have been copied by a Skidmore, Owings & Merrill architect who had been a judge in that competition. The copyright claim was that the student’s design was copied for the Skidmore firm’s design of the Freedom Tower to have been built on the site of the World Trade Center in lower Manhattan.

Judge Mukasey’s 2005 rulings left it to a jury to decide whether there were “substantial similarities” between the two designs. Nothing appears to have been reported since that ruling. It is therefore likely that the case has been settled. 

Locally, one architect may have been successful in his mid-'80s lawsuit against a Houston restaurant company that had allegedly copied his design for a restaurant, the once-popular and no longer-existing Colorado Mine Co. in southeast Denver. The reported legal decision in that case involved only a question of whether the statute of limitations had run out and there is no reported case indicating what the eventual result was.

The lesson to be learned is that it is not only architectural drawings and specifications that may be entitled to copyright protection. Designs in progress, in models or in the completed structure may also be protected, and the design architects' rights can be legally enforced. But that depends upon the design originality, the substantial similarity of the alleged copy and whether its designer had access to the allegedly copied design.

Architects need not register their copyrights if they make note of them on their plans, specifications, drawings, models, etc. with their names, years and circled © or the word “copyright,” until they decide to legally pursue a copyright violation. However, to recover damages and attorneys’ fees in a copyright lawsuit, they must have registered their designs with the U.S. Copyright office within three months of the first publication of their work.

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