The Battle of Fort Copyright


An original design of a building can be protected by copyright as long as it is produced in a “tangible medium.”  A tangible medium is something that can be seen and reproduced, including a constructed building or architectural plans, models, or drawings. Protection extends to the overall form as well as the arrangement and composition of spaces and elements in the design but does not include individual standard features or design elements that are functionally required.   That means that the whole building with a courtyard is protected, but the archways going into the courtyard are not necessarily covered by that registration.

The term “building” means structures that are occupied by humans and intended to be both permanent and stationary, such as houses, office buildings, churches, museums, gazebos, and even garden pavilions.  But structures other than buildings, such as bridges, dams, walkways, tents, and recreational vehicles are not protected by copyrights.

Because one can protect the building itself, not just the plans, it means that a builder may be liable for copyright infringement if they base the new building on another building even if they never saw the plans. That is called creating a derivative of the work, and that is infringement if the original is protected by copyright.  Even if it is changed some, it is still a derivative.  And please, don’t ask me what percentage needs to be changed.  That is not a metric that the courts look at to determine if it is derived or not.  The percentage doesn’t matter, the fact of deriving something from a copyrighted design is what matters.

Therefore, even if imitation is the sincerest form of flattery, builders, architects and owners should not attempt to copy or mimic other architectural works or buildings without knowing the status of the building being copied.

Sticking your head in the sand is not a defense either.  If a building was derived (or were “inspired by” or whatever euphemism you prefer) from another’s copyrighted design, even if you didn’t know it was copyrighted, that is infringing.  A copyright owner does not have to show an intent to copy.  They just have to show that the alleged copier had access to the copyrighted work and the alleged infringing work is substantially similar to the copyrighted work.  So claiming “I didn’t know!” isn’t going to work even if they didn’t put the © on the plans.

What does work?  Independent creation.  That’s right – you may have to use your own creativity.  Also, licensing the work gives you permission to do certain things.  Be sure you understand what the license says.  It may be only for one build or unlimited builds.  It may allow for modifications; it may not.  Make sure you know what you (or your client) is paying to get.  Just because the plan was “bought”, it doesn’t necessarily mean you can build multiple versions.  In fact, there might be even more limitations.  Know what the terms of the deal are – don’t guess.  Finally, if you accept plans from others, make sure you limit your risk by things like indemnification clauses.  That way if you are sued for infringement, you can recoup those costs from the provider of the plans.