Okay, so first, what is “intellectual property”? “Real property” is land and things permanently attached to it, such as homes, unless they are mobile homes. Mobile homes are “personal property.” So are cars, jewelry, game systems, iPhones, stocks, etc. “Intellectual property” includes brand names, discoveries, formulas, inventions, knowledge, registered designs, software, and works of artistic, literary, or musical nature (thanks, www.businessdictionary.com). To put it into building designer terms, a home design is intellectual property. Even if it’s only drawn as a sketch on a napkin. A great thing about intellectual property is, it’s one of the most readily tradable properties in the digital marketplace. Also scary, right?
Intellectual property is protected by federal law via copyright, patent, or trademark. Generally, copyrights are used to protect works of art, music, or literature, while patents protect works of scientific innovation. If you were to develop a new photovoltaic roof shingle, or other construction material, those inventions would be protected by patent law. A trademark protects items that help define a company’s brand, such as its name, logo or catch phrases. Although a building design may qualify for a patent or a trademark, copyright is the most utilized form of protection.
Not many realize that a building can be patented. Some argue it’s a stronger form of protection over copyrights. For example, someone else may come up with a similar home design as long as it was done independently of your design. That’s the most common defense in infringement cases. Only one party, however, can hold a patent, and under U.S. law that means the party who came up with the idea first. But in reality, it’s not quite that simple. In today’s world of design and build, often there are many design professionals involved in a project making it difficult to identify the true “inventor.” In addition, a patent application must be filed within a year of the first public disclosure (say the first planning meeting) of the invention. An innovative home or commercial building might take more than a year to design and build. Lastly, patents have a process which allows the public to refute the qualifications of the application based on prior precedent. Regardless, buildings have been patented. Such as the Apple Store in the Upper West Side in New Your City.
Apple is another good candidate for explaining the use of trademarks as they relate to protecting architectural works. Most Apple stores are located in malls, so they aren’t protected as individual buildings. However, their layouts, with their open spaces and symmetrically arranged displays, received trademark protection. As individual buildings, like in the case of a free standing McDonalds, architectural works qualify for trademark protection if they are a distinctive building associated with a commercial brand. Mimi’s Café is another good example.
So, that leaves us with copyright protection. The most utilized form of protection for architectural works. Prior to 1988, architectural plans were considered a type of technical drawing for which copyright protection had long been recognized. In 1988, the definition of “pictorial, graphic, and sculptural works” was amended to expressly include architectural plans; and until December 1, 1990, this statutory class provided the only meaningful protection for the work of designers.
Effective December 1, 1990, a new class of works known as “architectural works” was added to the statutory list of copyrightable subject matter. An architectural work is defined as the design of a building as embodied in a constructed building, architectural plans, or drawings. This new statutory class extends copyright protection to a building’s design.
Since an architectural work may be embodied in plans or drawings, a question arises regarding the relationship between copyright in the architectural work and copyright in plans and drawings. These two forms of protection are separate. A designer who creates an architectural work by depicting the work in drawings has two separate copyrights — one in the design and one in the plans.
The copyright of an architectural work begins at the moment you create that first napkin sketch. Or the first time you “save” your computer file. Depending on how you work. But you’ll only be able to claim fundamental benefits if your design is infringed upon unless you formally register your work with the U.S. Copyright Office. A registered work that has been infringed upon could win a huge judgement and paid attorney’s fees.
To learn more about copyrights download a complimentary PDF copy of Copyright Basics for Designers and Builders by visiting http://aibd.org/aibd-copyright-basics/. You’ll be asked to provide some simple contact information – Name, state, zip code and email. By doing so, you’ll be included in AIBD weekly update emails, complimentary webinar invites, and more.
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AIBD is a professional association of design professionals specializing in residential design. We believe in the consumer’s right to choose who designs their home. We support our belief by providing education and resources to help the consumer make an educated decision and to help the professional perform at their peak. We are how homes are designed in America. For more information visit www.AIBD.org or call 1-800-366-2423.