by: Murrye Bernard Assoc. AIA LEED AP
Event: Architect as Leader: Protection of Intellectual Property Rights
Location: Center for Architecture, 08.03.10
Speakers: Cheryl L. Davis, Esq. — Partner, Menaker & Herrmann; Carol Patterson, Esq. — Partner, Zetlin & DeChiara
Moderator: Daniel Garbowit, AIA, LEED AP — Partner, Gabellini Sheppard Associates & Co-chair, AIANY Professional Practice Committee
Organizers: AIANY Professional Practice Committee
The term “property” refers to real estate and personal belongings, but “intellectual property” concerns thoughts and creativity, including architectural services. According to Cheryl Davis, Esq., of Menaker & Herrmann, the U.S. Constitution provides three types of protection: copyrights, patents, and trademarks. Copyrights apply to architectural drawings; patents protect special types of ornamentation or building systems; and trademarks allow firms to establish their brands.
The best way to protect drawings and website content, according to Davis, is to include the copyright symbol on the work. She encouraged architects to register each project with copyright.gov, although rights are guaranteed without registration. And even though it is not necessary to place the copyright symbol on drawings to receive protection from the law, “it shows you know your rights and are willing to enforce them,” Davis explained.
Since the 1990s, buildings themselves may be protected under copyright law. While it is acceptable to photograph buildings or, for owners, to alter or even demolish them unless otherwise indicated by contract, copying a design without permission is considered copyright infringement. To determine if infringement has occurred, the court examines a building’s identifiable features, including doors, windows, materials, and layout. If found guilty, the infringer may owe profits, statutory damage, and possibly attorney’s fees.
A client may not always understand the implications of hiring an architect, but the AIA B101 Owner/Architect Contract “creates the party’s expectation going forward,” stated Carol Patterson, Esq., of Zetlin & DeChiara. The contract clarifies copyright ownership in ambiguous situations, including what happens when one architect inherits a project from another, and how to transfer documents in digital form. Architects should be wary of contracts pushed upon them entitling the client to the copyright. “The copyright doesn’t have value to them, but it has tremendous value to you — the body of your intellectual property is not something you should transfer lightly,” Patterson warned.
Click here for Contract Document resources on the AIA website.
Murrye Bernard, LEED AP, is a freelance architectural writer and a contributing editor to e-Oculus.