As an architect, you know that your designs are your own, but you still need to protect your legal rights to them. Architects need to safeguard their intellectual property for several reasons. First, your clients might claim ownership of your work—after all, didn’t they pay you for it? Second, with architecture being such a collaborative discipline, identifying who created what can get murky, and fast. Third, although architectural works are protected by copyright, that legal protection is what experts call “thin.” Because features like a spiral staircase or cantilevered balcony aren't original ideas—sorry— they aren’t protected under the law. Courts tend to view architectural designs as compilations or derivative works, meaning the onus is on the architect to prove their original contribution.
Disputes over copyright don’t often end up in court, but when they do, the costs can be staggering. According to the American Intellectual Property Law Association, the median cost to litigate a copyright infringement suit in 2013 was $300,000 when there was less than $1 million at risk—and as that amount goes up, so do the costs. The good news is that you can avoid this scenario by taking a few simple and inexpensive steps, as recommended by three legal experts.
1. Assert ownership of your work. Register your firm’s drawings and the actual work (i.e. the building) as separate components with the U.S. Copyright Office. “It’s not difficult,” says Ray Harris, a director in the Phoenix office of law firm Fennemore Craig. “It’s intended to be a process that a nontechnical person with some direction or experience can [follow].”
The first time you do this, Harris recommends consulting an attorney who knows the process. Or if you want to get started on your own, download the short U.S. Copyright Office publication Copyright Claims in Architectural Works. “It is the best, most succinct exposition of copyright law in architectural works that there is,” says M. Kelly Tillery, a partner with law firm Pepper Hamilton in Philadelphia.
Tillery says protecting your intellectual property shouldn’t stop there. He suggests keeping dated records of the creation of the work. If the work is in a digital medium, metadata should provide an automatic record, but don’t trash the early iterations of the design. If it’s a sketch, hold onto it. “When I litigate a case, the more and earlier evidence of creation I have … the better,” he says.
And then stay vigilant and police your work. Look around the marketplace: If you see anything that might infringe on your copyright, talk to a lawyer as soon as possible. The statute of limitations for copyright infringement expires after three years.
2. Craft clear and detailed agreements with other parties regarding ownership, and put everything in writing. Maybe you left a project, but the client wants another architect to use your drawings. Maybe a project consultant is claiming ownership of work that you consider yours. Maybe you assumed that you own the professional photographs of your building since you commissioned them, but the photographer begs to differ.
To protect yourself in situations like these (or better yet, to avoid them altogether), be sure to have “watertight” written agreements in place, Harris says. Start by discussing the expectations of ownership with all parties, and make reasonable accommodations upfront. For a model agreement, AIA contract documents are a good place to start. Updated in 2007 to better reconcile the “chronic tension” between client and architect over ownership and licensing, they can provide more clarity on the topic overall, says Kenneth Cobleigh, the managing director and counsel of the AIA Contract Documents division.
Under the AIA’s standard terms, the architect retains ownership of the intellectual property but licenses the client to use it to construct the project, and to expand or alter the project in the future, using the “instruments of service” (e.g. the drawings or BIM model) that the architect created. The AIA’s language shields the architect from subsequent liability if, for example, a defect arises from work done by a subsequent, replacement designer. There’s also a licensing fee provision: You can stipulate that, should the client dismiss you (assuming you’re not in breach of contract), they will pay to keep using your instruments of service.
3. Don’t infringe on anyone else's copyright. Architects need to worry about infringing on other people’s copyrights, too. “Any time you take over a project, you are exposing yourself to potential liability,” Tillery says. Talk to a lawyer if you have concerns. Keep in mind that not intending to infringe doesn’t get you off the hook. You can also ensure your business against copyright infringement. “There are simply not that many copyright infringement suits,” Tillery says. “But if you get one, it could cost you a fortune.”
