Posted: July 30, 2010

Ownership of architectural plans belongs to the creator of those plans, not to the person whose house is being built from the plans, in the absence of an agreement to the contrary.

For example, homeowner #1 retains and pays an architect to design homeowner #1's dream house, which is subsequently built according to plans prepared by the architect. The architect puts the copyright notice on each page of the plans, but does not register the copyright with the U.S. Copyright Office.

After the home is built, home-owner #2 asks homeowner #1 if she can use homeowner #1's plans in building her new home. Homeowner #1 gives homeowner #2 the plans and homeowner #2 makes copies, changing only the name and address of the owner. Because homeowner #1 paid the architect for those plans, he has the right to give them to homeowner #2 to copy and use in building another home, right? Wrong! An original design of a building embodied in any tangible medium of expression, including the building itself and the architectural plans and drawings for the building, is subject to copyright protection as an architectural work, regardless of whether or not the copyright is registered with the U.S. Copyright Office.

As affirmed by the U. S. Circuit Court for the Fourth Circuit in Christopher Phelps & Associates LLC v. Galloway, 492 F.3d 532 (4th Cir. 2007), an architect that designs a home owns the copyright in the plans that the architect creates. As the owner of the copyright, the architect has the exclusive right to make copies of the plans and allow others to use those plans.

In Galloway, the court awarded the architect $20,000 in compensatory damages, the amount the architect testified he would have charged the second homeowner who copied the plans. The court, however, refused to enter an injunction requesting that the homeowner be enjoined from selling the house, on the grounds that once the homeowner paid the damages of $20,000 to the architect, the plans and the resultant home became a lawfully made copy.

This case illustrates several important points. First it reaffirms that it is the architect, and not the homeowner who has the right to allow others to use architectural plans, regardless of the fact that the homeowner paid for the plans. Second, if the copyright is not registered with the U. S. Copyright Office, the architect's damages may be limited to what he would have charged the second homeowner. Third, if the copyright in the plans had been registered with the U.S. Copyright Office, the architect would have been able to recover statutory damages, which may be up to $150,000 if willful infringement is found, plus attorneys' fees and costs.

Therefore, if you are the person or business that contracts with another to design a building, you will not be owner of the copyright in the plans or the building unless the designer agrees in writing to assign those rights to you. If you are the architect and want to fully protect yourself in the event of an infringement, then you should register the copyright in the design so that you may recover statutory damages.

Jane Tucker is an attorney with Vandeventer Black in Norfolk who practices business law. She can be reached by calling 446-8600.