Architectural Copyright Issues by Jason Campbell; Anderson, Murphy & Hopkins, L.L.P.

Architectural Works Copyright Act

In 1990, Congress enacted the Architectural Works Copyright Protection Act (“AWCPA”), which afforded “architectural works” special status under the law. 17 U.S.C § 101 et. seq. Prior to the enactment of the AWCPA, architectural structures themselves did not receive copyright protection, though plans, blueprints and technical drawings were afforded copyright protection as “pictorial” and “graphic” works. Accordingly, with the enactment of the AWCPA, architects now have two copyrights- one for the design depicted in the drawings or structures as “architectural work,” and another for the drawings themselves as “pictorial” or “graphic works.”

The AWCPA provides the current framework used by federal circuit courts to determine the scope of copyright protection for “architectural works.” “Architectural works” are defined to include architectural plans, drawings, mock-ups, as well as the overall form, composition and arrangement of spaces and elements in the design. “Individual standard features” such as windows, doors, foundations, and stairwells are excluded from the definition of “architectural works” and, accordingly, those features are not deemed to have copyright protection under the AWCPA. Moreover, design elements serving purely functional or utilitarian purposes, or necessitated by market demands, building codes, zoning requirements, and topography may not be afforded copyright protection based on the courts’ interpretations of “standard features” within the AWCPA. Additionally, under the scène à faire doctrine of copyright law, design elements associated with recognized styles of design or construction, i.e. Colonial or Victorian style houses, would arguably may not receive copyright protection.

Establishing the Copyright Claim

While copyright protection attaches at the time an author creates an original work, it is enforceable only after the author complies with the formalities of registration. A claimant who asserts a copyright infringement claim bears the burden of proving both ownership of a valid copyright and “unauthorized copying” of the copyrighted work by the defendant. A certificate of copyright registration establishes prima facie evidence of valid ownership of a copyright.

“Unauthorized copying” may be established by (1) direct evidence, or (2) by indirect evidence that the defendant had access to the copyrighted materials and that the alleged infringing materials are substantially similar to the copyrighted materials. Direct evidence of unauthorized copying may consist of party admissions, witness accounts of the act of copying, and common errors in the works of the claimant and the defendants. Such evidence is often difficult to establish save for the few occasions where witness testimony or forensic evidence may be available to prove up unauthorized copying

When direct evidence of unauthorized copying is unavailable, circumstantial evidence of “reasonable means of access” to protected work together with “substantial similarity” between the materials or work can satisfy the initial threshold of proof required for copyright infringement. “Reasonable means of access” is often proven with evidence that architectural plans or design materials were available on the internet or that the alleged infringing party had access to those in possession of plans or design information. Evidence that the defendant visited the jobsite or toured the completed project may also suffice to prove means of access.

Circuit Courts Tests for Substantial Similarity

Following the enactment of the AWCPA, federal circuit courts have struggled to apply consistent measures for substantial similarity among architectural works. There is currently a split among the circuit courts as to the emphasis to be placed on overall design, originality or uniqueness of design and the extent to which certain unprotected elements of design should be “filtered” out as part of any substantial similarity analysis.

For example, some courts look to the “total concept and feel” of the overall architectural design. Other courts look to determine the extent that the design contains “original expression” versus non-original elements of a work which are not afforded copyright protection.

Jason J. Campbell
Anderson, Murphy & Hopkins, L.L.P.
400 West Capitol Avenue, Suite 2400
Little Rock, AR 72201-4851
Direct: 501-210-3608
Fax: 501-372-7706