One issue that we constantly run into while designing custom homes, is copyright. We go to great lengths to respect the hard work individuals, and companies have invested in the creation of their designs. We often have clients come to us with plans ripped from magazines and they say they want this kitchen, or this exterior. This is where we have to inform them that we can’t just rip an idea off, or just change it 17%, and we’re okay. It is our responsibility to educate the client on the law, and create an artistically, and intellectually unique design, that does not rely on some else’s work.
I recently had the pleasure to attend a presentation by Boise based attorney Stephen Nipper presented by the local chapter of AIGA American Institute of Graphic Arts1. While the specifics of the presentation had to do with Graphic Design and the like, the underlying law for it, and for architectural design is the same. I will split this post into two. Being a lawyer, we covered a lot of ground in the hour long presentation. In summation, here is what I learned:
When a client hires our company to design their home, what is purchased is basically the paper that the design is printed on, with the lines on the page. That is, unless the “artistic content” is sold as defined in the contract with that client. I will run down with you my understanding from Stephen Nipper. In his preamble, he was quick to point out that this was not legal advice, and your particular circumstance may vary, but by and large, it is good information.
Copyrights are created at the instance it is fixed in a tangible medium. A mark or registration is not necessary. If you do register the plan, you need to do it before it is published, or within 90 days after it appears in “print” (publishing electronically is considered the same as the printed page). If the plan is registered, it enables you to seek higher statutory penalties, if an infringement occurs. Damages range from $750-$30,000 (and $100,000 if it is a willful infringement). You can also collect the attorneys fees associated with protecting the copyright. If the plan is not registered, then you have to show what the loss/gain is. This can be much more difficult to prove. A registration creates a public record, and puts everyone on notice that you consider this to be proprietary information. A registration also must occur before a suit is filed.
The designer of a plan is by default the owner of it (except if the designer is an employee, then the company owns the copyright), unless it is changed by the contract, or is a “work for hire” situation.
Copyright is referred to as a “bundle of sticks” situation, where each of the following rights exist independently, and need to be addressed separately. Copyright includes:
- Derivative rights: manipulating the design in such a way as to create something new.
- Distribution rights: rights to print, sell, or otherwise distribute the plan
- Performance rights: right to perform the copyrighted material in public (on hold music)
- Display rights: right to display the copyrighted material in public (in a lobby, for instance)
- Right to Reproduce: duplication of the plan either singularly, or in multiple copies
Ignorance of the fact there is a copyright in place is not insulation from lawsuit for infringement. The largest thing to change though, is the magnitude of the penalties. If it can be proven that there is ignorance to the existence of the the previous plan, then of course willful infringement is not on the table. Also, there is a maximum of $200.00 per infringement, versus the $750-$30,000 penalty. Also, just because you don’t make a profit on stealing someone else’s design, does not mean you can’t be sued for the damages that the copyright holder experiences.
The idea that if a plan is changed X%, it no longer is copyrighten by the original designer, is a myth. We often hear that if you change some designers plan by 17%, it’s okay to use. I don’t know where that number came up, but I’ve heard it more than once. The definition that is used by the court is if the two designs are “Strikingly Similar.” That injects a degree of subjectiveness to the interpretation. So care must be taken, if you use a plan as inspiration, that it is not only noticeably different, but that it is not strikingly similar.
Typically, a copyright lasts for the length of the authors life, plus 70 years. I am not sure how this works in regards to a company, or 25 years from publication, or 125 years from creation.
I’ll finish up what I learned on the next post. All in all, an educational experience.
>Mark
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1 American Institute of Graphic Arts
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