Sadly, it’s a recurring nightmare for architects, designers, developers, builders and others working in or servicing the construction industry. You work hard and prepare a great set of plans and then, surprise, you are told that the project is canceled. Sometimes the project is canceled before the plans are even finished.
But then, months later, you discover that the project is on again except you never got the call. And the client is using your plans anyway. Or perhaps the client moved on to a new project and used your plans there. You might not even find out until the project is built.
Of course in none of these cases did you give permission. In fact, your contract may have expressly said that the client cannot use your plans for the original project, or any other, without your participation. Do you have any real options?
The usual suggestion, file a breach of contract suit, may not be the way to go. You have no leverage and a long wait to get to trial. And, your recovery may be limited to the value of the plans which may be less than your attorneys’ fees.
The better option may be a copyright infringement suit. Your plans are copyrighted as soon as they are prepared. It is automatic. Plus, under the Architectural Works Copyright Protection Act, you can copyright completed buildings as well as drawings.
A suit for copyright infringement gives you tremendous leverage since one of the remedies is an injunction against use of the plans. A second remedy is the profit that the infringer gains from the use of your plans.
You will need to register your copyright before filing suit. If you register before the infringement begins, or within three months after the first publication of your plans, you may be able to recover statutory damages of up to $150,000 for willful infringement, plus attorney fees. You might even consider making it a regular practice to register your plans on a quarterly basis to protect yourself.
But wait, there’s more. In some cases infringers have been known to remove title blocks from plans to cover up their infringement. That gives you another option, even if you haven’t registered your copyright, which is a claim under the Digital Millennium Copyright Act (DMCA) that protects against removal of copyright information from copyright protected works. And the DCMA provides the option of statutory damages up to $25,000 plus attorney fees to the copyright owner.
So, next time that project falls through, all may not be lost. Copyright law may be there to protect you.
Also, check out this post at ArtLawJournal.com: Copyright for Architectural Designs
About Joel Rothman
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.
