Applicable Law that provides Copyright Protection: Architectural Works
Copyright Protection Act of 1990; 17 U.S.C.A. § 102(a)(8), as amended
in 1990 (AWCPA). The registration and deposit of architectural works is
governed by 37 C.F.R. § 202.11. The Berne Convention is the primary
international copyright treaty.
Copyright vs. Trademark vs. Patent vs. Service mark?
What is a Trademark? In short a trademark is a brand-name. Copyright
laws do not protect names, titles or short phrases. Under both federal
and state laws a manufacturer, merchant or group associated with a
product to a service can obtain protection for a word, phrase, logo, or
other symbol used to distinguish that product or service from others.
What is a Service-mark? A service mark is any word, name, symbol,
device, or any combination, used, or intended to be used, in commerce,
to identify and distinguish the services of one provider from services
provided by others, and to indicate the source of services.
Trademark, Service Mark... Which Do I Need? The difference is
fairly simple. A trademark is a phrase, word, logo, symbol or other device
that is used to identify the source of a product or service and to
distinguish one company's products from the competition. The
trademark, service mark distinction is really quite small. Trademarks and
service marks are essentially the same thing, except that a trademark
promotes goods or products while a service mark promotes services.
Patent: A patent is an exclusive right granted for an invention, which is a
product or a process that provides a new way of doing something, or
offers a new technical solution to a problem. A patent provides protection
for the invention to the owner of the patent for a limited period, generally
20 years.
What is a Copyright? Copyright is a form of protection provided by the
laws of the United States (title 17, U. S. Code) to the authors of “original
works of authorship,” including literary, dramatic, musical, artistic, and
certain other intellectual works. This protection is available to both
published and unpublished works. Section 106 of the 1976 Copyright Act
generally gives the owner of copyright the exclusive right to do and to
authorize others to do the following: To prepare derivative works based
upon the work; To distribute copies or phonorecords of the work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending; To perform the work publicly, in the case of literary, musical,
dramatic, and choreographic works, pantomimes, and motion pictures
and other audiovisual works; To reproduce the work in copies or
phonorecords; To display the work publicly, in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and pictorial,
graphic, or sculptural works, including the individual images of a motion
picture or other audiovisual work; and In the case of sound recordings, to
perform the work publicly by means of a digital audio transmission.
Three criteria needed for protected expression: Copyright protects
“original works of authorship” that are fixed in a tangible form of
expression.
1.Fixation
2.Originality
3. Minimal Creativity
What are some Recognized examples of Copyrightable Works:
literary works; musical works, including any accompanying words;
dramatic works, including any accompanying music; pantomimes and
choreographic works; pictorial, graphic, and sculptural works; motion
pictures and other audiovisual works; sound recordings; architectural
works. These categories should be viewed broadly. For example,
computer programs and most “compilations” may be registered as
“literary works”; maps and architectural plans may be registered as
“pictorial, graphic, and sculptural works.”
Derivative Works: A “derivative work,” that is, a work that is based on
(or derived from) one or more already existing works, is copyrightable if it
includes what the copyright law calls an “original work of authorship.”
They are also known as “new versions.” To be copyrightable, a derivative
work must be different enough from the original to be regarded as a “new
work” or must contain a substantial amount of new material. The following
examples show some of the many different types of derivative works:
Television documentary (which contains some archival footage and
photographs); Novel in English (a translation of a book originally
published in Russian); Sound recording (CD in which two of the ten
selections were previously published online) Sculpture (based on a
drawing); Drawing (based on a photograph); Book of maps (based on
public domain maps with some new maps); Lithograph (based on a
painting).
What Works Are NOT Protected by Copyright? Several categories of
material are generally not eligible for federal copyright protection. These
include among others: Works that have not been fixed in a tangible form
of expression (for example, choreographic works that have not been
notated or recorded, or improvisational speeches or performances that
have not been written or recorded);Titles, names, short phrases, and
slogans; familiar symbols or designs; mere variations of typographic
ornamentation, lettering, or coloring; mere listings of ingredients or
contents. Ideas, procedures, methods, systems, processes, concepts,
principles, discoveries, or devices, as distinguished from a description,
explanation, or illustration. Works consisting entirely of information that is
common property & containing no original authorship(ex: standard
calendars, tape measures/rulers, lists/tables taken from public
documents or other common sources)
Common-Law Copyrights. It is well settled at common law that an
author or creator of a literary or intellectual production has a property
right thereto which exists independently of and notwithstanding copyright
statutes and entitles him to the exclusive use of his production before
publication, such property right being commonly referred to as a common-
law copyright. What Protection it affords - A few courts, to varying
degrees, have recognized that these principles apply to architects and
architectural plans, drawings, or designs.
Scope of Copyright… It is illegal for anyone to violate any of the rights
provided by the copyright law to the owner of copyright. These rights,
however, are not unlimited in scope. Sections 107 through 121 of the
1976 Copyright Act establish limitations on these rights. One major
limitation is the doctrine of “fair use,” which is given a statutory basis in
section 107 of the 1976 Copyright Act. In other instances, the limitation
takes the form of a “compulsory license” under which certain limited uses
of copyrighted works are permitted upon payment of specified royalties
and compliance with statutory conditions.
Fair Use: § 107. Fair Use Limitation. The fair use of a copyrighted
work, including such use by reproduction in copies or phonorecords or
by any other means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research, is not an infringement of
copyright.
Who Can Claim Copyright? Copyright protection subsists from the time
the work is created in fixed form. The copyright in the work of authorship
immediately becomes the property of the author who created the work.
Only the author or those deriving their rights through the author can
rightfully claim copyright.
Who is the Author/ i.e. who owns the copyright? Independent
Authorship by the Individual; Works Made for Hire; Joint Authorship
Independent Authorship: The individual author of a work is the initial
owner of its copyright when the work-made for hire does not apply and
when there is no joint authorship.
Works Made for Hire. The employer and not the employee is
considered to be the author. Section 101 of the copyright law defines a
“work made for hire” as:
a work prepared by an employee within the scope of his or her
employment; or
a work specially ordered or commissioned.
Employees vs. Independent Contractors: U.S. Supreme Court has
held that the a person is an employee for copyright purposes if the
person on whose behalf the work is done has the right to control the
manner and means by which the work is created.
Works Specially Ordered or Commissioned: The parties must
expressly agree in a written instrument signed by them that the work shall
be considered a work made for hire. A work specially ordered or
commissioned for use as:
• a contribution to a collective work
• a part of a motion picture or other audiovisual work
• a translation
• a supplementary work
• a compilation
• an instructional text
• a test
• answer material for a test
• an atlas
Joint Work: The authors of a joint work are co-owners of the copyright
in the work, unless there is an agreement to the contrary. Copyright in
each separate contribution to a periodical or other collective work is
distinct from copyright in the collective work as a whole and vests initially
with the author of the contribution.
Can I transfer my copyright? Any or all of the copyright owner's
exclusive rights or any subdivision of those rights may be transferred, but
the transfer of exclusive rights is not valid unless that transfer is in writing
and signed by the owner of the rights conveyed or such owner's duly
authorized agent.
General Publication: Publication has a technical meaning in copyright
law. According to the statute, “Publication is the distribution of copies or
phonorecords of a work to the public by sale or other transfer of
ownership, or by rental, lease, or lending. The offering to distribute
copies or phonorecords to a group of persons for purposes of further
distribution, public performance, or public display constitutes publication.
A public performance or display of a work does not of itself constitute
publication.” Generally, publication occurs on the date on which copies of
the work are first made available to the public.
Copyright Notice: Since 1989, a copyright symbol (©) has not been
required in order to protect a copyright. However, it does put people on
notice that your work is copyrighted and weakens any "innocent
infringements." A person may use the "©" symbol even without
registering the work with the U.S. Copyright Office.
Copyright Notice Not Required on Unpublished Works: The
copyright notice has never been required on unpublished works.
However, because the dividing line between a preliminary distribution and
actual publication is sometimes difficult to determine, the copyright owner
may wish to place a copyright notice on copies or phonorecords that
leave his or her control to indicate that rights are claimed. An appropriate
notice for an unpublished work might be: Unpublished work © 2004 John
Doe.
Form of Notice: The notice for visually perceptible copies should
contain three elements. They should appear together or in close
proximity on the copies. The elements are:
1 The symbol © (the letter C in a circle), or the word “Copyright,” or the
abbreviation “Copr.”; and
2 The year of first publication. If the work is a derivative work or a
compilation incorporating previously published material, the year date of
first publication of the derivative work or compilation is sufficient.
Examples of derivative works are translations or dramatizations; an
example of a compilation is an anthology.
The year may be omitted when a pictorial, graphic, or sculptural work,
with accompanying textual matter, if any, is reproduced in or on greeting
cards, postcards, stationery, jewelry, dolls, toys, or useful articles; and
3 The name of the owner of copyright in the work, or an abbreviation by
which the name can be recognized, or a generally known alternative
designation of the owner.*
Example: © 2004 Jane Doe
Where do you put the Notice - Pictorial, Graphic, and Sculptural
Works: For works embodied in two-dimensional copies, a notice may be
affixed directly, durably, and permanently to:
• The front or back of the copies;
• Any backing, mounting, framing, or other material to which the copies
are durably attached, so as to withstand normal use.For works
reproduced in three-dimensional copies, a notice may be affixed directly,
durably, and permanently to:
• Any visible portion of the work;
• Any base, mounting, or framing or other material on which the copies
are durably attached.
For works on which it is impractical to affix a notice to the copies directly
or by means of a durable label, a notice is acceptable if it appears on a
tag or durable label attached to the copy so that it will remain with it as it
passes through commerce.
For works reproduced in copies consisting of sheet-like or strip material
bearing multiple or continuous reproductions of the work, such as fabrics
or wallpaper, the notice may be applied in the following ways:
• To the reproduction itself;
• To the margin, selvage, or reverse side of the material at frequent and
regular intervals; or
• If the material contains neither a selvage nor reverse side, to tags or
labels attached to the copies and to any spools, reels, or containers
housing them in such a way that the notice is visible in commerce.
How long does copyright protection last? For works created after
January 1, 1978, copyright protection will endure for the life of the author
plus an additional 70 years. In the case of a joint work, the term lasts for
70 years after the last surviving author's death. For works created but
not published or registered before January 1, 1978, the term endures for
life of the author plus 70 years, but in no case will expire earlier than
December 31, 2002. If the work is published before December 31, 2002,
the term will not expire before December 31, 2047. Works Originally
Created and Published or Registered Before January 1, 1978 - For pre-
1978 works still in their original or renewal term of copyright, the total
term is extended to 95 years from the date that copyright was originally
secured.
How does this ALL apply to Architects? Copyright protects
architecture! Architectural works became subject to copyright protection
on December 1, 1990. Copyright protection extends to any architectural
work created on or after December 1, 1990. Any architectural works that
were unconstructed and embodied in unpublished plans or drawings on
that date and were constructed by December 31, 2002, are eligible for
protection. Architectural designs embodied in buildings constructed prior
to December 1, 1990, are not eligible for copyright protection
What constitutes an Architectural Work? Copyright law defines
"architectural work" as "the design of a building as embodied in any
tangible medium of expression, including a building, architectural plans,
or drawings."
What constitutes a building? Building is by definition more than simply
habitable structures, but also includes gazebos and garden pavilions.
Standard features of buildings such as windows, doors and other
common building components are not subject to copyright protection.
Nevertheless, separate design elements may still be subject to copyright
under the Act if they fall within the definition of "sculptural works.”
Are Architectural Ideas Copyrightable? The rule that ideas are not
copyrightable has been applied in the case of architectural designs.
Thus, it has been said that while architectural designs may be
copyrightable, the idea of a tower structure is not copyrightable since it is
only an idea. Nor do ideas and sketches contributed by one who
commissions the design of a building constitute fixed expressions of
ideas that are copyrightable.
Ownership and use of drawings and specifications: The ownership
of the plans and specifications resides with the architect, including both
common-law and statutory copyright interests. The contractor and
subcontractors are given a temporary license to use the plans and
specifications in the execution of their work.
Why should architects insist on maintaining control over their
design documents?: First, giving up control of the design documents
increases the chances that someone, either the owner or a third party,
may use the design documents in an inappropriate way, such as using
them to construct another project for which they are not suitable.
Second, giving up ownership of the design documents might be
construed by some courts as essentially selling the documents. This, in
turn, may be perceived to be the sale of a good as opposed to a
service. Professional liability is based upon a standard of care. It is
possible that the seller of a good is subject to exposure under a strict
product liability theory.
Which design documents can be reused by the owner or third
parties? By splitting ownership and copyright between the owner and
architect, respectfully, questions as to just what the owner can do with
the documents it owns remains.
Publication as applied to Architecture: It is well settled at common
law that an author or creator of a literary or intellectual production has a
property right thereto which exists independently of and notwithstanding
copyright statutes and entitles him to the exclusive use of his production
before publication, such property right being commonly referred to as a
common-law copyright A work is considered published when underlying
copies of the building design are distributed or made available public by
sale or other transfer of ownership, or by rental, Construction of a
building does not itself constitute publication registration, unless multiple
copies are constructed.
Marketing Brochures and Architecture: Sales brochures that contain
adaptations, condensations, or recastings of pre-existing architectural
blueprints have been deemed derivative works under copyright law.
I have a design, should I copyright it and Register it? Some of the
advantages of registering a copyright are the following:
* Registration establishes a public record of the copyright claim.
* Before an infringement suit may be filed in court, registration is
necessary for works of U. S. origin.
* If made before or within 5 years of publication, registration establishes
sufficient evidence in court concerning the validity of the copyright and
the facts stated in the copyright certificate.
* If registration is made within 3 months after publication of the work or
prior to an infringement of the work, statutory damages and attorney's
fees will be available to the copyright owner in court actions. Otherwise,
only an award of actual damages and profits is available to the copyright
owner.
* Registration allows the owner of the copyright to record the registration
with the U.S. Customs Service for protection against the importation of
infringing copies.
How do I copyright something- Copyright Registration: In general,
copyright registration is a legal formality intended to make a public record
of the basic facts of a particular copyright. However, registration is not a
condition of copyright protection. Even though registration is not a
requirement for protection, the copyright law provides several
inducements or advantages to encourage copyright owners to make
registration.
Actual Registration of an Architectural Work: To register a claim to
copyright in an architectural work, send the following material to the
Library of Congress, Copyright Office:
1. A properly completed application Form VA
2. A non-returnable copy of the work
3. A nonrefundable filing fee in the form of a check, money order, or
bank draft payable to Register of Copyrights
Infringement: Unless you can work out an out-of-court settlement, a suit
for copyright infringement must be brought in federal court. In general,
you have three years from the most recent infringement to bring a suit in
court. In addition, your copyright must be registered with the U.S.
Copyright Office.
Common Defenses to Infringement: Work was created
independently; Alleged infringement consisted of sections which are not
copyrightable (such as facts or news). In addition, a defendant can claim
that he or she is making fair use of the work, which includes criticism,
comment, parody, news, research and scholarship. “Innocent
Infringement,” Defendant did not know it was copyrighted. t of the use.
Remedies: Injunctions; Impounding and disposition of infringing articles;
Actual Damages and Profits; Statutory Damages; Attorneys fees and
costs.
