Copyright Issues in the Construction Industry

Written by: Matthew Cox

The construction industry is governed by many different bodies of law.  Arguably, contract law lays the unifying foundation for the industry.  But other bodies of law still play vital roles in shaping the ever-changing legal landscape.  Intellectual property, and specifically copyright law, is vital to the industry.

Just who owns architectural or engineering design documents associated with a construction project?  Does the owner who contracted with the design professional[1] for design services own the documents?  Or, does the designer, by way of work product created by intellectual means, retain ownership of the plans and specifications? 

Design documents are subject to copyright laws in the United States; they fall under the category of “technical drawings,” which includes architectural plans.[2]  Whether or not unique aspects of the design were protected after construction was completed remained a looming question until 1990. Finally, litigation resulting from this issue persuaded legislators to clarify the code.[3]

The straw that broke the camel’s back was a case brought in 1988 by an architect against a homebuilder who allegedly copied the architect’s design after it had already been used to build the home for which the design was initially drawn up.  The homebuilder used the design and constructed an identical home elsewhere. The court found for the builder . . . and found no violation of the copyright.[4]

In response, Congress amended the copyright laws to more clearly define architectural work as the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.  This tightening of the rule brings in arrangement and composition of elements, but still excludes individual features.[5]  Under this rule, the design professional, by law, owns both the design documents, as well as the unique design elements of the structure—but not the individual elements.[6]

Parties are still free to contract how they see fit, so most agreements contain provisions for the owner to retain a limited license for the plans and specifications while the design professional retains ownership of the documents.  The copyright can also be transferred.  Issues arise when the design professional has concerns about use of the design in unanticipated ways by the project owner.  In this situation an indemnity agreement holding the design professional harmless and charging the project owner with providing a defense upon suit is an adequate risk management option.  The general rule of thumb has become: the professional designer retains ownership of design documents, unless the parties agree otherwise in contract.