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Copyright infringement of building or house plans

Can I get a copyright in house plans or building plans?

The short answer to this question is yes.  However, the copyright only extends to those elements of the buildings plans that are original.  Determining what is an original element can be a complicated legal question.  While a

What is copyright infringement of a house plan or building plan?

In order to prove copyright infringement, the copyright owner must prove that the accused copied the protected elements of the copyrighted work.  Any copying of non-original material or material that is in the public domain is not included in copyright infringement.  To determine copyright infringement, a court or jury determines if the two works are substantially similar and thus if there was wrongful copying of the copyrighted work.  The test for substantial similarity, according to one court, is whether “the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.”

The amount of protectable elements in a building plan or house plan typically depends on how original or complex that building plan or house plan is.  For example, the Guggenheim Museum in New York City would be considered a complex architectural work.  However it is substantially more difficult to find protectable elements in the house plans for a middle class home in what is considered a “cookie cutter subdivision.”  Further, the more unique a house plan is the easier it is to prove wrongful copying whereas the less unique and/or more generic a house plan is, the harder it is to prove wrongful copying.

For example, in Zalewski v. Cicero Builder Dev., Inc., the Second Circuit court of appeals noted that generalized notions of where to place functional elements, how to route the flow of traffic, and … methods of construction” are un-protectable. Architects cannot claim that good engineering is original to them—or at least can get no copyright protection for it and there is no copyright in a building plan’s design parameters. Constraints placed on an architect by the way her client plans to use the building do not originate with the architect.  The Second Circuit went on to hold that the architect can get no credit for putting a closet in every bedroom, a fireplace in the middle of an exterior wall, and kitchen counters against the kitchen walls. Furthermore, the overall footprint of the house and the size of the rooms are “design parameters” dictated by consumer preferences and the lot the house will occupy, not the architect.  Similarly features that are features of all homes of a certain style are not copyrightable.

The attorneys at Shaver & Swanson, LLP have handled numerous cases involving allegations of copyright infringement of house plans and/or building plans for both Plaintiffs and Defendants.  If you have any questions regarding copyrights in house plans and/or building plans, please do not hesitate to contact us.

Common Law Copyrights

Common Law copyright vs registered copyright  Under current copyright law, if you just create something, you own a copyright in that thing, whether it is a statue, a book, a poem, a photograph, a piece of furniture, or a painting.  To keep someone from copying your creation, you just have to file for a copyright ($45) and sue them for copyright infringement, assuming a cease and desist letter doesn’t work.  If you can prove you created it first, and they copied it, you can get an injunction and make them stop copying it.  That is a bit of a hollow victory after spending tens of thousands on a lawsuit, and it means that you will only enforce your copyright under these facts if it is a very important creation, like your company’s flagship product.

However, if you had filed for copyright within 90 days of publication of your creation, or before it was copied, you could stand to win an injunction, attorney fees, and the damages specified in the statute, which is so many dollars per copy that has been made.  Each loading of a web page is one act of copying.  What that possible outcome adds up to is a huge hammer held over the head of the copier.  If he loses he will lose big time, and you will be made whole.  He will go to his copyright attorney and learn that he will lose big time if he gets sued, and he will come crawling to you with hat in hand and offer some kind of reasonable settlement, including not copying your creation ever again.  That filing has given you tremendous leverage, and you can enforce your copyright without the lawsuit.

What information do you need to file for a copyright?

What information do you need to file for a copyright?

    • Date and creation of the work.
    • Date of first publication.
    • Was the work for hire? Usually this is work done by an employee. If there is an agreement that a work will be treated as a work for hire, the following specially ordered works can become works for hire: a work as a compilation or pre-existing materials, part of a motion picture or audiovisual work, translation, supplementary work, instructional text or answer material, atlases.

Note that this list does not include ordinary art or writing, hired out, or architect’s plans made for a client. That work is not “work made for hire.” It belongs to the creator, unless it is assigned to the hiring party.

  • Is this a derivative work? A derivative work is a new version of something else. If the work is merely a variation, the underlying work must be copyrighted. Slight variations do not necessarily need to have separate copyrights, but if there are major changes, a separate copyright may be obtained. However, a new variation of an old uncopyrighted version may not be copyrightable.
  • Is the work entirely original, or is it a compilation or collection that has unique qualities because of your arrangement?
  • Year of completion.

Providing Copyright Notice

How do I provide proper notice that a work is copyrighted?

  • Proper notice has the © symbol of the word “Copyright,” the name of the owner of the copyright, and the date of first publication. The date of first publication is when the work was made public, not when it was created.
  • Proper copyright notice should be placed on all works in an obvious place. For designs in clothing, as close to the artwork as possible. For printed publications, on the title page or its equivalent. For software, on the title screen and on any printed material.

What is a Copyright?

What is a Copyright?

  • A copyright is an exclusive right to reproduce and prepare derivative works of an original work of authorship. When compared with the patent right, a copyright is affirmative in nature because it gives the owner a right to do something other than just preventing other people from doing something.
  • A copyright protects the expression of an idea rather than the idea itself.
    • Section 102(b) of Title 17 of the United States Code provides “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
    • Example:  A copyright protects an artist’s photograph of a mountain.  Copyright does not protect the idea of photographing the same mountain from the same location.

Information Needed to File Copyright

Information needed to file for copyright   To complete the registration forms properly, you (or the attorney preparing the registration) will need to know the answers to the following questions:

  1.  What is the title of the work?
  2. Have there been any previous or alternative titles?
  3. Was this work part of a larger work, such as a periodical, serial, or collection?
  4. What are the names of all of the authors?  (This is asking for the name(s) of the person/people who created the work, not the person who is claiming copyright.  If the work is a work “made for hire”, then the copyright owner is the same as the author.  Although “made for hire” sounds like it should cover work that an independent contractor does for pay, it doesn’t cover that.  Work done by an independent contractor must be assigned in writing to the owner, or it is owned by the independent contractor.  A work is “made for hire” if either the work was work prepared by an employee within the scope of his or her employment; or there is a written agreement between the parties specifying that the work is a work made for hire, AND it comes within one of the following ten categories of works: (i) contribution to a collective work, (ii) part of a motion picture or other audiovisual work, (iii) translation, (iv) supplementary work (i.e., prepared for publication as a secondary adjunct to another author’s work such as an index or forward), (v) compilation, (vi) instructional text, (vii) test, (viii) answer material for a test, or (ix) atlas.)
  5. What is the country of citizenship or domicile of each author?
  6. Was each authors’ name (as opposed to a pseudonym) identified on the copies of the work?  (If not, there will be additional questions to answer as to how to report the anonymous or pseudonymous authors’ information in the registration form.)
  7. OPTIONAL:  What is the year of birth of each author?  (Month and day of birth are not necessary).
  8. If any author (who is not anonymous or pseudonymous) is deceased, what is the year of death?  (Month and day of death are not necessary).  (Answer is optional for any deceased anonymous or pseudonymous author).
  9. What did each author contribute to the work being registered?
  10. What was the year in which the work was completed?
  11. If the work is already published, what is the month, day, and year of publication?  (“Publication” is defined as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”  A work is also “published” if there has been an “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.”  If your work is not yet published, but will be published later, you may need to seek registration again once the work is published.  See Circular 7d, “Mandatory Deposit of Copies or Phonorecords for the Library of Congress”.)
  12. Who will own the copyright, and is the owner a person, persons, a corporation, or other entity?
  13. What is the address of the copyright owner?
  14. Has this work or any earlier version been registered for copyright before?
  15. Is this work based on or does it incorporate any previously-existing work?

Filing Your Own Copyright

Copyright is so easy to file that you can do it yourself easily for the $65 filing fee.  The enforcement potential is huge, if you have taken the precaution of filing for copyright before you were infringed or within 90 days of creation.  So file for copyright on any original creation, such as web sites, greeting cards, books, articles, drawings, photos, furniture designs, software, clothing styles, videos, music, poems, statues, animations, and anything that is an original creation.  Go to the U.S. Copyright Office for the forms to fill out for filing, and call me when your copyright gets infringed.

 

VA form is for Visual Arts

TX form is for text

etc

Do I need to File an Official Copyright? Isn’t it Automatic?

Common Law copyright vs registered copyright  Under current copyright law, if you just create something, you own a copyright in that thing, whether it is a statue, a book, a poem, a photograph, a piece of furniture, or a painting.  To keep someone from copying your creation, you just have to file for a copyright ($45) and sue them for copyright infringement, assuming a cease and desist letter doesn’t work.  If you can prove you created it first, and they copied it, you can get an injunction and make them stop copying it.  That is a bit of a hollow victory after spending tens of thousands on a lawsuit, and it means that you will only enforce your copyright under these facts if it is a very important creation, like your company’s flagship product.

However, if you had filed for copyright within 90 days of publication of your creation, or before it was copied, you could stand to win an injunction, attorney fees, and the damages specified in the statute, which is so many dollars per copy that has been made.  Each loading of a web page is one act of copying.  What that possible outcome adds up to is a huge hammer held over the head of the copier.  If he loses he will lose big time, and you will be made whole.  He will go to his copyright attorney and learn that he will lose big time if he gets sued, and he will come crawling to you with hat in hand and offer some kind of reasonable settlement, including not copying your creation ever again.  That filing has given you tremendous leverage, and you can enforce your copyright without the lawsuit.