Jane Tucker | Vandeventer Black
Who has the right to use architectural plans and drawings prepared by an architect for a specific project? What happens if the project on which the architect was working and the architect both leave one firm and move to another firm? What happens if one architect is retained to prepare preliminary plans and then another architect is retained to prepare final plans based on the preliminary plans?
Under copyright law, the architect who prepares architectural plans and drawings is considered the author and owner of the copyright in those plans or drawings, unless there is an agreement to the contrary. One exception to this rule is when architectural plans and drawings are prepared by an employee within the scope of employment. In that case, the work is considered a “work for hire” and the employer, not the employee architect, owns the copyright in that material.
The owner of the copyright in architectural plans and drawings has the exclusive right to control the use of that material. This includes the right to reproduce the architectural plans and drawings, to prepare derivative works based on the architectural plans and drawings, and to distribute copies of those plans and drawings.
In order for anyone other than the owner of the copyright to use those plans and drawings, including the individual architect(s) who created the plans and drawings as an employee, the owner must grant permission for the works to be used by another. This is the case even when both the project and the individual architect leave the employer and move to another architectural firm.
Permission to use copyrighted materials (a “license”) may be expressly granted or may be implied from the circumstances. An express license can be either written or unwritten. An implied license is by its nature unwritten, although its existence may be supported by certain writings.
The owner of the copyright in architectural plans and drawings may be deemed to have granted an implied license to another to reproduce and use its plans and drawings for purposes of completing a specific project. The existence of an implied license depends upon the intent of the owner of the copyright to allow the plans to be used in the future even without the owner’s continued involvement in the project. In determining intent, the courts have developed a three-prong test:
- Whether the parties were engaged in a short-term discrete transaction (favors implied license) or a long term involvement in the project (favors no implied license);
- Whether the parties utilized written contracts, such as the standard AIA contract, providing that copyrighted materials could only be used with the architect’s future involvement or express permission;
- Whether the architect’s conduct during the creation and delivery of the material indicates that use of the copyrighted material without the architect’s consent was permissible.
See Nelson-Salabes Inc. v. Morningside Development LLC, 284 F.3d 505 (4th Cir. 2002).
Therefore, the answers to the questions in the first paragraph of this article depend upon who is the owner of the copyright in the architectural plans and drawings and whether the owner of the copyright has granted either an express or implied license to another to use the plans and drawings.
Use of architectural drawings without a license from the owner is copyright infringement.