Few people outside of the world of architectural design have ever heard of one law that has a profound impact on construction law in the United States: The H.R.3990 — The Architectural Works Copyright Protection Act of 1990, which we will refer to in this blog post as “the 1990 Act.” As a result of the law, architects may now be limited in their legal response when they believe they are facing a copyright infringement.
Photographs taken to incorporate copyrighted design elements
Previous to the law’s passage, a holder of an architectural copyright technically had the right to seek injunctive relief to prevent photographs, drawings or models from being made of the actual structure. Sec. 20 of the 1990 Act now explicitly states that the copyright holder does not have “the right to prevent the making, distributing or public display of pictures, paintings, photographs or other pictorial representations of the work,” so long as the building has been constructed in a public place.
In short, the wording of the law says that the rights holder may not sue to prevent reproduced images of the building. But a larger legal issue may lie at its base: Does the law now allow any public structure to be photographed if the intent is to use the photo for incorporating specific copyrighted design elements into a new building?
In June, 2014, an architect in New York lost a related case when an appeals court judge ruled that property developers had not infringed upon copyrights when they incorporating design elements for which they no longer had an active licensing agreement. (Zalewski v. Cicero Builder Dev., 2014, 2nd U.S. Circuit Court of Appeals)
Limiting injunctive relief after construction has begun
The 1990 Act imposes further legal limits on architectural copyright holders after an infringing building is already under construction. Under the Sec. 502, the copyright holder “shall not be entitled to obtain an injunction…if the construction has substantially begun.” Furthermore, under Chapter 5 of the law, under no circumstances may an infringing building be ordered to be seized by the copyright holder or demolished.
Altering a building’s design
Under the law, architects have also lost some control over the extent that one of their designs may be altered or revised to meet the owner’s needs. Building owners now have the right to make minor alterations in the design, if necessary to meet a specific need or affect needed repairs.
Two sides to every construction litigation case
As always, laws passed by the U.S. Congress are open to legal interpretation and adjudication and may be superceded by relative California state laws. If you are a construction professional in California and have a question about design infringement, call the Law Offices of John R. Lobherr, Inc., in Irvine.