(Published by the Idaho Business Review, April 2008)

            In many respects, imitation is an integral to a competitive free market system.  Regarding building design, it would be naïve to believe that architects and owners do not look to other projects for ideas and inspiration.  For example, individuals often tour model homes, scour home design magazines and troll the internet for design ideas to incorporate into their personal “dream homes.”  However, intellectual property rights limit the more egregious forms of copying architectural works.  Therefore, everyone involved in construction projects should remain mindful of intellectual property rights issues, including copyright infringement.   

 In 1990, Congress established a new category of copyright protection for architectural works.  The Copyright Act now includes “architectural work” defined 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 over-all 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.C. § 101.  Thus, copyright protections encompass both the plans for a residence as well as the actual house itself. 

           Not all copying constitutes copyright infringement.  Copyright infringement requires both ownership of the copyright and “infringement,” meaning copying of the protected elements of the work.  The unprotected elements include ideas, concepts and processes.  Similarly, elements dictated by external factors (such as building codes) are not afforded protection.  However, if appropriation of both the protected elements and the particular expression occurs, copyright infringement may be found.   

           Copyright law protects the right of an author to their original expression, perhaps a fictional novel, but others may build freely upon the ideas and information conveyed by the novel.  Distinguishing ideas from their particular expression grows a bit convoluted when the copyrighted work consists of an architectural project.  Ideas regarding general placement of functional elements, routing traffic flow, construction methods, and principles of engineering can be copied without legal consequence.  However, appropriation of both these ideas and the architect’s expression of them constitutes copyright infringement.  The test for expression of ideas is whether an ordinary reasonable person would find the total concept and feel to be substantially similar.

 Since the extension of copyright protection to architectural works, copyright owners have asserted infringement claims based upon a variety of residential and commercial projects, including homes, restaurants, and hospitals.  Importantly, infringement does not require actual copying architectural plans.  Rather copying can be inferred based on an opportunity to view and copy a building.  For example, such access might include touring a model home and taking pictures, followed by construction of a home that bears a “substantial similarity” to the model home.

 In general, registration with the U.S. Copyright office prior to infringement is not required.  However, prior registration may enhance the damages available to remedy infringement.  Generally, architectural plans do not need to display a copyright notice.  However, such a notice may deter infringement and afford additional protections in some foreign countries.  As such, copyright notices should be included on plans as a matter of practice.  A copyright notice includes the year during which the work was first published, the name of the copyright owner and the copyright symbol, “©”. 

 Ascertaining the actual monetary damages, if any, that result from copyright infringement can prove elusive.  The basic rule is to calculate the revenue that would have accrued but for the infringement.  Often this requires expert analysis delving into losses that may include lost profits, licensing fees, or the computation of a reasonable royalty reflecting the hypothetical fair market value associated with the use the copyrighted work.  In many circumstances, a copyright owner can elect to seek statutory damages ranging from $750 to $30,000 per infringing copy and may be entitled to an award of attorney’s fees and costs.  Statutory damages can be up to $150,000 per copy for infringements deemed to be “willful”.

In many infringement cases, the litigation costs far exceed the actual damages.  Federal courts are vested with exclusive jurisdiction over copyright cases.  As such, one must “make a federal case out of it.”  With this in mind, the defense of copyright infringement claims can prove very expensive and time consuming.  Beyond litigation costs, the defense of an infringement claim usually necessitates a significant time commitment for all parties involved.  This may include time expended to meet with counsel, review records and documents, testify at discovery depositions, attend mediations and to prepare for and testify at trial.  In the end, a construction project that involved alleged infringement that occurred years ago can significantly distract your attention and take away time from present projects. 

 Jason G. Dykstra is an associate with the law firm Meuleman Mollerup LLP with a focused practice in the areas of commercial litigation and business succession planning.  Jason can be reached at 208.342.6066, or This e-mail address is being protected from spam bots, you need JavaScript enabled to view it , more information at www.lawidaho.com.