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A Great Investment of $30 – Protect Your Copyright

Timothy R. Hughes, Esq.
Hughes & Associates, P.L.L.C.

Architects live on the fruit of their intellectual work product.  Protection of your ability to earn money from your creative output is critical to your business success.  Ensuring that others cannot simply take your ideas, trace your drawings and build thousands of the same structure is critical to you success.

I.    How To Create A Copyright

At common law, the general rule is the creator of the work has an immediate copyright in that creation.  The U.S. Copyright Office permits parties to file applications to register their copyright.  With respect to architecture, you file a Visual Arts application along with a $30 filing fee.  The filing and approval of the application creates a strong, but rebuttable, presumption that the filing party holds a valid copyright.  For a wealth of detailed information on filing, you can visit the U.S. Copyright Office website at http://www.copyright.gov.

II.    Ownership and Contractual Terms

Most architects are at least familiar with the concept of copyright.  They understand it is important to maintain ownership of intellectual property interests in their work product.  The AIA form contracts provide that the architect owns the copyright in all work product and only provides a limited license for use on the project which is expressly contingent upon the owner’s payment for services.  Naturally, the creator can transfer ownership of the copyright by contract, so be careful in your owner/architect agreements.

III.   What Is “Infringement”?

 Infringement is demonstrated by the copying of a protected work.  Copying is demonstrated by showing that the protected work was in fact published or available to the fringing party and that the work in question is substantially similar to the copyrighted work. 

It should be noted that even derivative works can be at issue in an infringement case.  For example, someone takes your design and embellishes upon it.  They then try to claim it is a “new” design because of the differences.  Courts generally hold a party can prove infringement by showing substantial similarity.  Further, while the infringing party above may have a limited copyright to only the “changes”, the original owner would still hold the copyright to the underlying materials and can recover available damages for infringement.

IV.    The Real Impact of Filing the Application

How often in life are you given the chance to spend $30 on an investment that can reap tens of thousands of dollars?  So far in my life, I would say never (dot com boom notwithstanding).  For architects, the investment of $30 in filing their copyright application can translate to a worth of tens of thousands of dollars.

When infringement occurs after the approval of a copyright application, the copyright holder is entitled to statutory damages.  Notably, the approval is held to relate back to the date of the filing of the application.  Thus, if you file your application and it is eventually approved, any infringement occurring after your filing date triggers potential statutory damages.

The statutory damages are key in copyright infringement litigation.  First, even if actual damages are modest, the court is permitted to award statutory damages.  Second, and far more importantly, the court is given statutory discretion to award the prevailing party attorney’s fees.  Most courts tend to award damages in favor of the prevailing copyright plaintiff.  The potential recovery of your attorney’s fees if you truly believe you have a good case of infringement makes filing copyright litigation far more palatable.  It also provides tremendous leverage in negotiating the resolution of solid infringement cases.

V.     Conclusion

Filing an application for copyright on every project is quick, simple and cheap.  It can result in saving extensive expense and legal fees.  Simply stated, filing these applications should be a regular administrative practice in all architectural firms.