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Don’t let the Parade of Homes become your Boulevard of Broken Dreams!

By

Homeowners, home builders and just plain "lookie-loos" often tour model homes and others on display or for sale, to get an idea of "what's out there." Shopping around for that perfect house, or just the right fit for your budget or design aesthetics is an age-old practice. However, imagine someone taking something from that house while walking through it. No one in their right mind would think it is OK to remove something of value from the home, or its owner. That's theft, right? Well then, all should be careful that the designs, plans, drawings or even "inspirations" which belong in those houses don't end up in others' designs, plans, drawings, or heaven forbid, a completely built home.

That dream home may actually become a nightmare, in the form of Exhibit A in a copyright infringement lawsuit!

The designs, drawings, constructed elements and written plans or photographs of buildings can be protected by federal laws, most notably those contained in the U.S. Copyright Act. Those copyright laws exist to protect people or businesses who create original works, such as home designs or building plans. The ideas behind the laws are to give creators a reward for being creative. It allows them to hold a sort of monopoly on their creations, plans or designs, for a limited time. They are the only ones who can recreate those designs, or authorize others to recreate those designs, such as building a home based upon their designs, or even perhaps "tweaking" those designs a bit, modifying them or changing them to suit a different design, plan or homeowner's needs; one which is derived from the original design.

Architectural copyright laws protect architects, designers, builders, subcontractors and even remodelers. While copyright laws protect those people, they can also create liability for the same people or businesses, if drawings, plans or photographs are used without proper license or authorization.

Perhaps even more concerning, homeowners themselves and even their realtors or other agents in the process can be found to have infringed copyrights, if they contributed, directed or encouraged the infringing activities. Any one, or all, of those parties can be found liable for monetary damages for infringement. Builders and designers should have a working knowledge of copyright law as it relates to their industry, in order to protect their rights in their intellectual property, as well as to avoid infringing the rights and creations of others. Copyright infringement is a tort. So is enabling or inciting another to infringe, at least when the person knows that her conduct will result in infringement. Court decisions dating back several decades recognize that one who supplies the means to infringe, or encourages infringement, or even turns a "blind eye" to the actions of others, can be held liable for contributory infringement.

The United States Copyright Act protects a building's original design embodied in any tangible medium (e.g. drawings, cad programs, etc.) including architectural plans or drawings and buildings, as an "architectural work". Since 1990, with the passage of the Architectural Works Copyright Protection Act, protections for designers & builders have become much more enhanced, clearly and explicitly recognized as applying to building plans, for houses and office buildings. Other permanent, stationary structures designed for human occupancy, including but not limited to, churches, museums, gazebos, and garden pavilions, are also included in the enhanced copyright protections.

Copyright protection for architectural works created by an individual in his or her personal capacity (not as a work-made-for-hire) last the life of the author plus 70 years. Protection for an architectural work created as a work-made-for-hire lasts for 95 years from the date of publication of the work or for 120 years from the date of creation of the unpublished plans, whichever term a shorter.

Only the original copyright holder has the exclusive right to reproduce, build, and create derivative works based on their protected works. Those rights could be granted to others, but must be granted to be legitimate and liability-free. Bottom line, the unauthorized use of plans constitutes copyright infringement, and should not be glossed over by anyone designing, building or considering their options in constructing a new home.

If you or someone you know has questions, concerns, would just like a bit more information about this article, or even an opinion as to whether these laws apply to your circumstances, please contact Mick Spence at Hellmuth & Johnson for more details: 952-746-2138.