Leaving No Stone Uncopied

For millennia, architects, developers, and builders have borrowed the ideas of others in constructing everything from the humble to the audacious. From the Freedom Tower in lower Manhattan and embassy-lined avenues in Washington, D.C., to hospital renovations and tract housing, real estate developers and architects have struggled with the fine line between use and theft of architectural plans. Now, with economic uncertainty and a credit crunch bringing pressure to minimize costs, the question arises anew: To what extent can one architect’s plans be used by others without permission, and what are the damages if copyright infringement is shown?

A 1990 amendment to the Copyright Act amended the definition section (17 U.S.C. 101) to include “architectural works” as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” Courts have looked to this definition in making the critical determination of when an architect’s work is merely an idea and when it is a copyrightable expression of that idea.