News & Insights

Builder Beware! Copyright Infringement of Architectural Works
April 4, 2016
by Jennifer ElBenni

 

South Bend / Mishawaka, IN – Copyright registrations and litigation surrounding architectural works are on the rise.  By taking precautionary steps, homeowners and contractors can be in a better position to prevent the unauthorized duplication of buildings and avoid the costs of unforeseen litigation.

The Architectural Works Protection Copyright Act of 1990 restricts the ability to mimic architectural works.  Under this Act, copyright protection extends to original designs of architecture in virtually any form, including plans, drawings and even the buildings themselves.     This means, that even if the actual building plans are not intentionally copied, a successful copyright infringement action may still be pursued if a copycat building is constructed.

Before construction begins or money exchanges hands, the parties should negotiate and enter into a written contract establishing their respective rights.  The written contract should clarify copyright ownership.  Many clients of custom homes and other buildings assume that because they paid for the plans, they are the copyright holder.  This is not necessarily true.  Absent an agreement to the contrary, copyright ownership generally remains with the creator.  This is often not a black and white issue, and is further complicated by employment arrangements and potential joint ownership claims.   Therefore, to avoid any confusion as to who owns the copyright, the parties should preemptively designate the copyright owner.

Regardless of which party ultimately owns the copyright, the homeowner and contractor should seek written representations from the architect that the designs and plans are the original work of that architect.   The written contract should further contain indemnification provisions, wherein the architect agrees to indemnify and defend the homeowner and contractor from any claims of copyright infringement by third parties.

Finally, contractors should confirm that their insurance policies cover architectural copyright infringement.  Copyright infringement litigation can be extremely costly and can financially devastate a construction company.  Contractors should read their policies carefully to ensure sufficient coverage.

The content of this article is for information purposes only, and neither contains nor should be considered legal advice. If you have any questions or would like assistance in negotiating or drafting an agreement to protect your rights, please contact me at (574) 400-2580 to schedule an appointment.

 

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