By Alex Barthet
Courts have found that an original design of a building embodied in any tangible medium of expression, including plans or drawings, is subject to copyright protection.
Unhappy with the final bid price he received from contractor A, an owner sought out contractor B and provided him copies of contractor A’s plans and specifications, after having first deleted contractor A’s name and address. Contractor B provided a lower price and was retained by the owner. However, nearly all aspects of contractor A’s plans and specifications were used by contractor B, including in applying for a permit.
Not a good move by the owner. A court concluded the owner was required to compensate contractor A for its damages associated with this infringement.
One further issue is worthy of attention. Drawings created after March 1, 1989, do not require a copyright notice to be protected. Protection is granted once the work is fixed in a tangible medium (i.e., when the design professional draws the plans by hand or electronically). Therefore, the absence of a copyright notice or the lack of a registration with the Copyright Office does not necessarily mean that there is no copyright in the work. Notwithstanding, providing proper copyright notice and registering works with the Copyright Office is an easy and inexpensive way to assert your rights. Moreover, registering works with the Copyright Office provides certain incentives such as the ability to recover up to $100,000.00 in statutory damages per infringement.
It’s easy; it’s smart; and it’s something every design and construction professional should do.