Protecting copyright in architectural drawingsJanuary 6, 2014
In Northern Ireland the vast majority of claims for professional fees cannot be the subject of statutory demands and bankruptcy petitions. Usually, a court must first adjudicate that the fees have been properly incurred. Given that the short, sharp shock of a statutory demand is not available in most cases of outstanding professional fees, other methods have to be sought. One potentially available to architects is a claim for breach of copyright. Architectural plans and drawings can be protected by copyright (they may also be protected by unregistered design right).
A copyright claim has three elements, the first of which is subsistence of copyright. Copyright protects original works; it does not need to be registered. It subsists as soon as it is recorded in permanent form. Copyright protects ‘artistic works’ – and architectural drawings are protected as artistic works. Buildings are also regarded as artistic works.
This, however, only protects original features, not those commonplace or dictated by technical function. Secondly, contrary to express agreement otherwise or within the scope of employment, the author of a copyright work is its first owner. This will mean that the architect may be the owner of copyright in plans and the building itself. The architect may also wish to protect various moral rights in copyright work.
The third element is infringement of copyright. Copyright in architectural drawings and plans is infringed by the reproduction and/or use or copying a substantial part of those plans and drawings without the owner’s permission.
Copyright in a building may be infringed by copying the building or the construction of another building that incorporates original artistic features. Common features, such as the number of doors and windows, would not be protected.
It is also important to note that copyright in a building is not infringed by making a graphic representation of the building, taking a photograph or film of the building or including a visual image of it in a broadcast. Where fees remain outstanding, the architect may issue civil proceedings. This may include a claim for damages. A court would assess the amount based on the royalty fee for a nominal licence. The architect may also be able to seek an account of profits – ie a claim in damages equal to the amount gained by breach of copyright.
The architect may also seek an emergency/ final injunction to stop further use of the copyright works. This is a significant remedy, given the speed by which it can be brought before the courts and the economic impact that it may have on a defendant’s business.
Damages for breach of copyright and injunctive relief are significant remedies in addition to a claim for professional fees because they can be used to target anyone using the architect’s copyright without express permission. This is much wider than recourse against the party who is contractually liable to pay an architect’s fees.The threat of a copyright claim is often sufficient to bring a defendant to the negotiating table. The vast majority of cases are resolved pre-litigation or before trial. This strategy is not without its own risks.
Intellectual property litigation can be extremely expensive. An interim injunction is a discretionary remedy. Even if the courts were prepared to grant an interim injunction, the architect would have to give a crossundertaking in damages, an agreement to be responsible for any damages the defendant suffers as a result of the injunction if the architect is not ultimately successful at trial.
Where major developments are concerned, potential damages may far exceed any claim by the architect. Litigation is best avoided unless absolutely necessary. Where possible these pitfalls can be avoided by parties agreeing at the outset the scope of their contractual obligations in express written terms – ie ownership of any intellectual property rights and permitted use. This may include express provisions on copying and/or amending plans and drawings. Litigation can also be avoided by ensuring there is a documentary audit trail to prove the conception and creation of copyright.
Finally, whilst copyright subsists automatically, it is advisable to add a notice demonstrating copyright protection on plans and drawings. A copyright notice should also be included on websites. This demonstrates that the architect is aware of and willing to protect intellectual property rights. Intellectual property remedies should be only one element of a strategy to recover fees and protect the architect’s interests.
Professional advice should be sought before considering a copyright claim.
If you would like further information, or to find out how the team at Cleaver Fulton Rankin can help you, telephone 028 9024 3141 or visit www.cfrlaw.co.uk