Like most architects in this time of booming home sales, Ann Capron is busy--too busy, she says, to chase builders who are copying her plans without her permission. "I have more trouble with people taking a sales brochure [from a model home] to a draftsman and reproducing my plan," says Capron, who works for McIntyre, Batchelor, Capron Architects, in Paoli, Pa.
But plagiarism is difficult to prove, she says, and accusing someone of it in court is expensive, so she has never filed a claim. "It's aggravating," she adds.
Yet Capron may be forfeiting more money than she knows, says Orlando, Fla., copyright lawyer Herb Allen, because courts have been awarding architects amounts equal to the value of each home built with pirated plans. So pursuing a builder who is illegally duplicating plans "may be worth it," says Allen.
Many architects are not aware that the federal government in 1990 overhauled the law that shields their intellectual property from being used by others without permission and payment, notes Takoma Park, Md., architect Charles Poor, of Studio Partnership Architects. "Most architects don't know the limit of their protection and also how it may affect their practices," he says.
The copyright protection act
In fact, the Architectural Works Copyright Protection Act of 1990 says nobody--not even the owner of the building--may reuse plans unless the architect agrees. The act makes the design's creator its owner until the architect transfers that ownership to a builder or homeowner. The architect holds the copyright even if he or she has not registered the design with the U.S. Copyright Office or marked it with the symbol --the copyright notice.
Before 1989, explains Allen, work that was published in any form--as a floor plan in a builder's brochure or as a photograph in a magazine--was fair game for copycats if the original drawings did not sport the symbol.
Since 1990, however, the copyright act has protected both drawings and buildings from duplicitous draftsmen unless the creator of the work gives permission. The architect also is entitled to payment for reuse.
Old habits, it seems, are hard to break. "Builders seem to think they can take a plan they see in a magazine, hand it to an in-house draftsman, draw it up, and it's free if they've seen it published," complains Don Evans, of The Evans Group, in Orlando, Fla. "It ain't that way anymore."
Still, admits Hal Woods, of The Woods Group Architects, in Santa Ana, Calif., some architects have "gotten a little bit carried away" in their zeal to claim copyright, suing builders and other architects for using designs so common that nobody can really lay claim to them.
"There's only a certain number of ways to design a single-family home," says Woods. "An architect who designs a two-car garage can't say that nobody else can build a two-car garage." Evans agrees: "There are certain architects who are draw- ing a real fine line. Just because we build a car with four wheels, that doesn't mean we owe you money."
Yet the law does not say exactly how much of a design one has to copy before it's considered an infringement.
"Some builders say they have to change it 5 or 10 or 20 percent, but there is no magic formula," says Allen, who gives this rule of thumb for checking similarities between plans: Copy both onto transparencies. Lay the original on top of the alleged infringer and note where lines match on floor plans or elevations. "We're looking for copying," he says, and notes that only drawings and buildings--not concepts--can be copyrighted.
What to do
Allen points to three ways architects can bolster the chances that others will not steal their plans.
First, put the copyright notice--the symbol--on every plan, even if it has not been registered with the U.S. Copyright Office. The law automatically grants the copyright to the creator.
Second, use the client contract to spell out the fact that the architect owns the plans and that nobody-- not even the builder--may duplicate them without permission from and payment to the designer.
Finally, pursue those who borrow plans without permission. Send a letter to the infringer and file with the U.S. Copyright Office at the same time. The architect can use those two documents in court to get a speedy injunction that says the builder may not use the plans.
For important works, advises Allen, it's prudent to file with the U.S. Copyright Office. Registration may be done by mail and costs $30. Forms can be downloaded from the Internet at www.lcweb.loc.gov/copyright.
Allen says copyright extends to plans that are shared with clients via electronic mail and the Internet, although Thomas Gallas, an accountant who works with architects Torti Gallas and Partners/CHK, in Silver Spring, Md., says it's easier for would-be thieves to delete the architect's identification from electronic documents than from paper.
Yours, mine or ours
Who owns the plans?
Copyright law grants ownership to the architect who draws the house plan. But who owns the plan if the architect has hired a freelancer or assigned an employee to make the sketches?
Florida copyright attorney Herb Allen says it depends on the arrangement the architect has with the colleague.
If an architect hires an independent contractor to create and draw the plans, the contractor owns the plans. In order for the architect to own those plans, he or she must get the freelancer to sign a contract that assigns all rights to the copyright to the architect.
If a freelancer and the architect work on the plans together, they have joint ownership. Again, the contractor must transfer copyright rights in order for the architect to claim exclusive ownership.
The rules are different for a salaried employee, however. The architect owns any plans created by his or her employees. Those plans are considered works for hire and do not require a written transfer of copyright