A couple of HVAC contractors are sitting in their favorite local watering hole having a drink. Tom (our hero and SMACNA member) mentions a new and innovative residential outside air exchange system that he has just installed. Steve (his friend and competitor) asks if he could see a copy of the house plans, including any details relating to the HVAC system, stating, “This house that I’m working on has a really screwed up HVAC system design.”
While Tom is hesitating and thinking, “Am I allowed to do this?” - Steve says: “Don’t worry Tom; it’s no big deal. The plans are publicly filed with the city anyway.”
Can Tom give Steve the plans? Short Answer to the Question
Tom should not give Steve the plans unless Tom has permission from the owner of the copyright. The fact that the documents may be publicly filed is irrelevant.
In 1990, Congress amended the copyright law to protect architectural works. Architectural copyright protection exists whether or not the copyright symbol © is on the plans. Therefore, even if Tom does not see a copyright symbol on the plans, the author of those plans still could assert copyright protection. Because the HVAC design was considered “original” by Tom, it likely would be considered to be copyright protected; and, therefore, the plans should not be given to Steve.
What Architectural Works are Subject to Copyright Protection
An author may claim copyright on an entire structure, or just a specific portion or feature like the floor plan or HVAC system. To receive copyright protection, the plans must be “original.” This is a fairly low standard. The plans must contain some minimal degree of creativity. The author of the work (in this case, the designer of the HVAC system) does not need to have designed the most spectacular system in the world; rather the system must be minimally creative and not purely functional.
If the design is “purely functional,” then it cannot receive copyright protection. For example, the idea of a damper is obviously not copyright protectable, because it is merely functional. However, an electronically controlled damper system may be sufficiently “original” to be worthy of copyright protection.
The Fact that Plans are Publicly Filed is Irrelevant
The ability to observe plans publicly, whether by walking through a house or building, by measuring or photographing the dimensions of a structure, or by copying the plans, does impact the ability to enforce copyright. It is still illegal to use someone’s copyrighted plans without permission.
Ownership of Copyright
Who owns a copyright is a question that is often asked. If Tom designed the HVAC system that was placed in the home, who owns the copyright to the HVAC design? This is not always a simple issue, but the basic rule is that the author of the design owns the copyright. In our discussion above, if Tom designed the HVAC system, then he would be presumed to own the copyright.
Even if a design is incorporated into an owner’s home or building, the owner does not own the copyright. Moreover, a general contractor is not presumed to own a copyright merely because it is the general contractor. The copyright law focuses on who is the author or designer of the particular plan in deciding who owns the copyright.
There is an important exception to the rule that the author owns the copyright. If Tom designed the system while he was employed, then his employer would own the copyright. Put another way, if an employee drafts plans as part of his job, the employer owns the copyright.
Contract Provisions to Address Ownership of Copyright
The copyright law allows ownership of copyright to be transferred by contract. This means that the parties can have provisions in their contracts to indicate who owns the copyrights for plans. A standard provision, which is included in many home purchase agreements, is as follows:
The Buyer acknowledges that the Builder’s Plans are copyrighted and remain the property of the Builder. The Buyer is allowed a one-time use of the Plans for the construction of the new home under this Contract and understands that the Buyer may not copy, or use or sell such Plans without the prior written consent of the Builder. Any unauthorized use of the Plans is in violation of copyright law and may subject Buyer to injunctive relief and damages. These provisions make clear that the builder owns the copyright and not the home buyer.
Likewise, if you hire architects or designers to perform services, you may want to ensure that you own the copyright to the work product. The parties can sign “Work for Hire” agreements where the architect assigns to you all copyright interests in the plans. “Work for Hire” agreements are fairly simple. Your lawyer should be able to provide you with a form at a low cost.
Protecting Your Copyright Interests
If you have created plans you want to protect, you should err on the side of placing a visual notice on the document. This is especially important on documents, which will be publicly distributed and seen by others. To properly place a notice, the following three elements must be satisfied:
- The symbol “©” or the word “copyright” or “COPR.”;
- The year of first publication of the work; and
- The name of the copyright owner.
© 2003 SMACNA; or Copyright 2003 SMACNA; or COPR. 2003 SMACNA. While a copyright notice is not a “prerequisite” to copyright protection, it is important evidence that you intend to place third parties on notice that you considered the document important and subject to copyright protection.
Registration with the Copyright Office is “permissive,” but it is not required. However, registering is a prerequisite for obtaining statutory damages in an infringement action, and creates prima facie (or presumption) evidence of ownership and validity of the copyright. Registration is required to obtain attorneys’ fees.
To register your drawings, you need to complete an application form (Form VA for Architectural Drawings), pay the non-refundable filing fee of $30, and enclose the appropriate number of copies. The fee, form and copies should be mailed to: Library of Congress, Copyright Office, 101 Independence Avenue S.E., Washington, D.C. 20559-6000. The Copyright Office has an excellent Web site located at http://www.loc.gov/copyright/.
Violation of the copyright laws can result in stiff penalties. If the plans are registered, a violator can be subject to claims for attorneys’ fees, and be responsible for thousands of dollars in statutory penalties and damages for each violation of the plans. While there have been only a few cases, there are provisions which even provide for criminal penalties.
The “run of the mill” or purely functional plans are not generally going to be subject to copyright protection. However, if you see something that is minimally original, it may be subject to copyright protection.
You should not distribute the plans, and you should be careful to respect others’ copyrights. Likewise, if you believe you have developed something original, you should err on the side of putting a copyright notice on the plans, and registering your plans with the copyright office. Registration will protect your ideas if others decide to use your plans without your permission.
Since 1990, litigation and disputes concerning infringement of architectural copyright have grown dramatically. Those of us involved in the construction industry need to be increasingly aware of the issues raised in this article, and be careful not to misuse the plans of others.