September 22, 2015
Even though the Owner hires the Architect to prepare the design for the Owner’s use in constructing a project, the architect retains ownership and control over the design documents based on copyright law. This ownership is reinforced in the terms of the A201 §1.5, noting that the Architect and its consultants retain all common law, statutory and other reserved rights, including copyrights. Therefore, to the extent that an Owner wishes to obtain the ownership and use of the design documents, this issue must be negotiated up front.
The Architectural Works Copyright Protection Act provides that architectural works created on or after December 1, 1990, are subject to copyright protection. The law defines an architectural work as "the design of a building as embodied in any tangible medium of expression," including any permanent, habitable structures from large office buildings to small structures such as patios. In contrast, projects such as civil works, mobile homes, or recreational vehicles would not eligible for copyright protection under the Act.
The copyright of an architectural work is generally owned by the author of the work, which could include the architect and any other professional that contribute to the work. The Owner will generally only acquire the Architect’s copyright by negotiating a transfer in writing from the copyright holder.
Consistent with other provisions under copyright law, copyright protection for architecture is limited to original works. Essential elements for a functioning building for are not protected by copyright. This would include such items as common space utilization plans, and standard features such as doors, windows and other common building components.
The owner of the copyright-protected design documents is entitled to control when and who is allowed to makes copies of the design documents, and the purposes for which they will be used. Therefore, the Architect could control how many copies of the design documents will be made, and to whom they will be given. For this reason, A201 §1.5.2 grants the Contractor and the lower tier subcontractors and suppliers rights use and reproduce the design documents for the named construction project. This right does not extend to the use of the documents beyond the contemplated project. So, if the Owner wanted to use the same plans to build another project, the Owner would have to obtain permission from the Architect, or be subject to the legal consequences of infringing on the Architect’s right under copyright law.
Not only does the Architect retain the ownership of the original design, it also retains the exclusive right to prepare derivative works based on the copyrighted work, and to perform or display the work publicly. A derivative work might include a photograph, painting, or other representation of either the design drawings or the building itself. Recognizing that application of these rights to architectural works could cause harsh
results, the Act does include limitations on the copyright relating to architectural works. The copyright in an architectural work that has been constructed does not prevent taking, distributing, or publicly displaying pictures, paintings, or photographs of the work , as long as the building is
located in or ordinarily visible from a public place. Another key exception is that a building owner may make alterations to, or destroy a building without the copyright owner's consent.
As a result of the general applications of copyright to the design, there are several key issues that should be considered during the initial retention of the design professionals. One item is to address who is actually designing each portion of the project. It is not uncommon for the Architect to specify the appearance and performance criteria for certain portions of the project, which are then actually designed by engineers working for the Contractor or Subcontractors.
The ownership of each phase of the design should be spelled out in the documents. This issue should also been considering when looking at A201 §3.12.10. §3.12.10 provides that the Contractor is not required to provide design services unless the services are specifically required by the Contract Documents, or unless the contractor “needs to provide such services in order to carry out its responsibilities with respect to construction means, methods, techniques, sequences and procedures.” If design services are provided by the Contractor, The design services should be provided by a licensed design professional. Additionally, §3.12.10 does not address whether the Contractor, or any subcontractors are required to carry errors and omissions insurance.