It is well understood that architectural plans are protected by copyright.  But what about architectural works “as built?”  Does the architect who retains ownership in his or her work have the right to stop others from copying?

For example, if I take a photograph of the exterior of your custom designed home, I have technically “copied” your architect’s copyrighted work of architecture.  Just like taking a photograph of an original sculpture makes a copy of the sculpture, a photograph of an original building makes a copy too.

Is that photograph an infringement?  This is one of those questions that always causes confusion for lawyers and non-lawyers alike. The answer is, maybe.

In 1990, Congress passed the Architectural Works Copyright Protection Act (AWCPA), which amended the Copyright Act to specifically include “architectural works” among the list of protected works in 17 U.S.C. § 102. The Copyright Act protects an architect’s exclusive rights to reproduce, distribute, display, and prepare a work based upon his or her design.  

These rights include the right to prevent photographers from taking photographs of an architect’s work “as built.” However, this right is not absolute, and has limitations which are set forth in Section 120 of the Copyright Act.

The architect does not have the right to prevent the making, distributing, or public display of pictures, photographs, or other pictorial representations of the building if it is “ordinarily visible from a public place.”

The architect is also restrained from preventing alterations to the building as built.  The owners of the building may both make or authorize the making of alterations to the building and destroy or authorize destruction of the building.  This means that the architect will not have the right to prevent the owner of a house that he or she designed from altering or destroying the building.

There have been very few court decisions interpreting Section 120 of the Copyright Act, and we have collected them here.  Not surprisingly, the issue does not come up often.

Case NameCitationCourtYearCopyright Issue
Guillot-Vogt Associates, Inc. v. Holly & Smith848 F. Supp. 682E.D.La.1994Architecture
Landrau v. Solis Betancourt554 F. Supp. 2d 102D.P.R.2007Architecture
M. Arthur Gensler, Jr. & Associates, Inc. v. Strabala1:2011cv03945N.D.Ill.2012Architecture
Robinson v. HSBC Bank USA3:2010cv01494N.D.Cal.2010Architecture
Tiffany Design, Inc. v. Reno-Tahoe Specialty, Inc. 55 F. Supp. 2d 1113D.Nev.1999Architecture
College of Charleston Foundation v. Ham585 F. Supp. 2d 737D.S.C2008Architecture
Gaylord v. United States595 F.3d 1464Fed. Cir.2010Art, Architecture

About 

Joel B. Rothman represents clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, defamation, trade libel, unfair competition, unfair and deceptive trade practices, and commercial matters. Joel’s litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery.