Business Copyright

Copyright for Architectural Designs

It is a common misperception that you cannot copyright a building design. That is probably because before 1990, there wasn’t much protection for building designs. At that time, anyone could reproduce buildings that looked identical to those created by others, as long as they didn’t actually use copied drawings to build them. With the passage of the Architectural Works Copyright Protection Act in 1990, architects got a much greater level of protection, being able to register completed buildings as well as drawings.

According to the Act, “[T]he design of a building as embodied in any tangible medium expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” Protection extends to the overall form as well as the arrangement and composition of spaces and elements in the design but does not include individual standard features or design elements that are functionally required.

The following building designs can be considered for registration:

  • Designs created on or after December 1, 1990
  • Designs that were created in unpublished plans or drawings but not constructed as of December 1, 1990, but were constructed before January 1, 2003

The following building designs cannot be registered:

  • Designs that were constructed, or whose plans or drawings were published, before December 1, 1990
  • Designs that were unconstructed and created in unpublished plans or drawings on December 1, 1990, and were not constructed on or before December 31, 2002
  • Structures other than buildings, such as bridges, cloverleafs, dams, walkways,  tents, recreational vehicles, mobile homes, and boats
  • Standard configurations of spaces and individual standard features, such as windows, doors, and other staple building components, as well as functional elements whose design or placement is dictated by utilitarian concerns

If your design can avail itself of Copyright, that protection is automatic upon creation of the work. However, the same misconceptions that we see among visual artists also abound in the architecture world.  For one, while most architects add a © notice to their architectural drawings, the © notice is not required and is not considered a ”registration.”  You do have copyright in the work, but without registration with the Copyright Office, you will not receive certain benefits of copyright.

For example, if your work is registered with the Copyright Office prior to an infringement or within three months of its publication, you may be eligible to receive statutory damages and payment of your legal fees should you prevail. Statutory damages allow up to $30,000 per infringement or if the infringement is willful, up to $150,000.  Alternatively, you can choose to receive “actual damages”, which may be greater as the copyright holder may be entitled to a percentage of the profits that the infringer received from the infringement.  (Note that if you are not eligible to receive statutory damages, you are still eligible to receive actual damages although attorneys fees are only awarded in limited circumstances). With the high prices afforded building or new home sales, statutory damages may be lower than the profit percentage.  However, with those higher monetary awards may also come higher legal fees, which will be paid for if the work is registered.  Of course, every case is different, but since registration fees are a mere $35, there is little downside. (For more on benefits of registration, see this article)

If your work is registered with the Copyright Office prior to an infringement or within three months of its publication, you may be eligible to receive statutory damages.

Another misconception involves copyright ownership.  Many clients of custom buildings believe that since they paid for the plans, they are the copyright holder. This is not necessarily true. Copyright generally remains with the creator. However, under certain circumstances, copyright may not be held by the work’s creator.  This concept is known as a “work made for hire.” For example, copyright in an employee’s work created within the scope of his or her employment is generally held by the employer, not the employee. On the other hand, an independent contractor generally holds the copyright in his or her work, while the hiring company, such as an architectural firm, only receives a license to use the work. However, for certain categories of work where there is a written agreement, the employer may hold the copyright, not the independent contractor. (For details on “work made for hire” requirements, see this circular provided by the U.S Copyright Office.) 

Copyright protection can lead to large damage awards for the copyright holder.  Last November, the U.S. Court of Appeals for the Fifth Circuit upheld a $3.2 million award for Kipp Flores Architects, a residential design firm in Austin TX against Hallmark Design Homes. The ruling is “one of the largest awards on record in an architectural copyright dispute,” according to a Kipp Flores press release.

In another Texas case, a federal district court in Houston awarded Hewlett Custom Design Homes $1.3 million against Frontier Custom Builders.  Frontier constructed and marketed 19 houses of Hewlett’s copyrighted designs. That award was based on the profits Frontier earned from the sale of the 19 houses. The court also ordered Frontier to destroy the infringing materials in the firm’s possession.

Unfortunately, proving infringement isn’t always easy, and can be a long drawn out affair. In an important 2008 Florida case, Intervest Construction, Inc. v. Canterbury Estate Homes, Inc., the Court of Appeals for the Eleventh Circuit agreed with the lower district court that the two designs seen below were not “substantially similar” and therefore not infringing. According to the court, “When courts have dealt with copyright infringement claims involving creative types of works, “substantial similarity” has been defined as existing “where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted Work.” How the court came to its conclusion that the Canterbury home was not infringing illustrates the difficulties in architectural infringement cases.

Copyright and Architecture

First, while Intervest was suing over its copyright in the “architectural work;” the design of the building, the court’s analysis did not include any elevations or section drawing of the building, or any three-dimensional architectural illustration. The court’s evaluation was based solely on their floor plans.

Second, the court stated that “the definition of an architectural work closely parallels that of a “compilation” under the statute, that is: “[A] work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” To understand the idea of a compilation, think about an anthology of the year’s best short stories.  There is a copyright in the book as a whole, but the author does not hold copyright in the short stories themselves, which are written by multiple individuals, each of which has a copyright for their story. Unfortunately, compilations are the lowest on the hierarchy of copyright protection.  The court in Intervest explained it this way: “An example of a compilation is [the floor plans at issue in this case.] The [Copyright] Act has created a hierarchy in terms of the protection afforded to these different types of copyrights. A creative work is entitled to the most protection, followed by a derivative work, and finally by a compilation. This is why the Feist Court emphasized that the copyright protection in a factual compilation is “thin.”

Not every court will agree with the idea that architectural floor plans are compilations, which makes developing tactics for an infringement case difficult. The takeaway for architects looking to use copyright to protect their designs, is that while copyright protection is available and there are distinct benefits to registration with the Copyright Office, dealing with an infringement can be tricky.  Should you find yourself the victim of an infringement, it is best to consult an intellectual property attorney before taking any kind of action.

If you have any question or comments, please add them below or feel free to email me.  If you found this article helpful, please post it to your social media or use the share links at the top of the page.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at or on display at the Emmanuel Fremin Gallery in New York City.


Click here to post a comment

Your email address will not be published. Required fields are marked *

    • It really depends on the plans, but I would argue that it isn’t just the plans but the look of the building within the plans. It really depends on the plans and then what you did with them. There might be a good fair use argument but without analyzing it all, I couldn’t be sure.

  • Hi Steve I’m a home owner and builder ,I designed my own floor plan in I hire a draftsman to finish it on his cadd program, he took 5 months to finish, and at the same time he copy and made litter changes and resold it to another home owner who was building 5 blocks away on the same street, both houses are at the same stage,this houses are worth about 800000,I created my own design and this draftsman sold it to another customer of his, I talk to the other home owner and he is very sad, he paid to the draftsman 8500 what can we do agains this draftsman

  • What about the massive amounts of “inspiration” images interior designers use to persuade clients? These images are not of their work and are mostly found on the internet. Then they give these images to the architect with the expectation that the architect will use these images to complete the interior elevations. This appears to be an ever increasing issue which has resulted in the client believing that the architect is not a “team player” when they refuse to design in such a shallow manner. Is this legal for them to use these images for profit? This is the only medium they use to convey how a space will look… besides maybe a sketch or two over the architects drawings and renderings. Are they even allowed to sketch over the architects drawings and renderings in an effort to persuade the owner to change the design. Is it legal for the architect to take these images and use them? When do you cross the line between inspiration and copyright infringement?

    • Where the line is drawn between inspiration and copying is a tough one, usually done on a case by case basis. It will end up being a fair use argument. Basically how much of the original works has been transformed for a new audience. I have a bunch of articles on fair use here, plus, download the free ebook which has a section on fair use. But I would think that ultimately the architect doesn’t match the interiors perfectly and makes his or her own creative choices. As well, I would imagine that certain choices are consequences of other choices. Maybe a bathroom goes in one place because the kitchen is next to it or something. I am just assuming here. But if the house exterior and interior layout are unique, and copied such that it is obvious that it is a copy, then it is can be an infringement.

      As far as the images themselves, they would probably be considered personal use and ok to us in that manner, much like recording a movie for personal use isn’t an infringement. But showing it to the patrons at a bar would be an infringement.

      One last point, if you end up having to use someone else’s work as a baseline and are unsure whether the new structure would qualify as fair use, and the buyer is insistent on using the design, make sure the contract has an indemnification clause. The client should take responsibility. If you are sued for copyright infringement, then the client will pay for the legal fees and any other judgements. That way the client has some skin in the game.

  • I am an architect. A local photographer has taken many pictures of several of my residential building designs, primarily for real estate companies for marketing purposes. They are quite good photographs. I am not upset about it but I would like to use his photographs for my website. I designed all of my projects after 1990 and I did copyright the designs on the plans and schematics as well as in the contracts I had with my clients. It is kind of a grey area because he took pictures of my designs without getting my permission and I feel odd asking him permission to use his photographs of my designs. I have no idea if I would need his permission and I feel a bit uncomfortable just posting his pictures on my website. I would be willing to give him credit for the photographs and providing a link back to his website. I also don’t know if the owners could take issue since pictures of the house are all over the web in their attempt to sell their homes that I designed for them. I would greatly appreciate any thoughts you may have with regards to this. It seems a bit perplexing.

    • Robert:

      Yes, it is a little counter-intuitive. But his pictures have their own copyright, and you would need his permission to use them. And since you building are in a public space, he would have the opportunity to take images. Think about it from the perspective of real estate photographers taking pics of neighborhoods. They don’t need permission. If you do ask the photographer to use the photos, make sure he supplies a licensing agreement with the terms of use, such as whether you have the perpetual use, or a limited time, and what you are using the photos for. That way there is no miscommunication that may haunt you later.

  • Steve, yes, I remember that language. However, what about a remote and secluded building that is viewable from the air or some other elevated perspective not on or over the subject property? It seems to me that the only way that could apply is if a building were completely enclosed within another structure or had an absurdly high wall around it.

    • That isn’t necessarily true. I haven’t researched the cases so I cant say for sure, however, the statute says “The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.” While a high powered lens from a hill shouldn’t be a problem, (assuming you are not trespassing), a helicopter shot might not fall into the definition of “ordinarily visible from a public place.” As almost every architectural structure is viewable from the air, there would be no point in adding that phrase So a secluded home in the middle of the woods, not visible except from the air, might be protected if it was built after 1990 etc.

      • A picture might not fall into the definition of “ordinarily visible from a public place.” But…the converse is that theoretically, anyone can get on an aircraft and take a photo. That would seem rather ordinary enough. Particularly with the amount of air travel today, it would be rather ordinary. I took a trip on a train a few months ago and I had my video camera pointed outside and recording both out and back. I have also seen video posted by passengers of aircraft. My humble opinion would be that it would be a very, very, difficult to prove that it is not “ordinarily visible from a public place,” unless, the airspace from which the photo was taken was “not public,” such as restricted or prohibited airspace.

  • I think it might be worth emphasizing that the copyright of architectural designs only covers selling or licensing of the plans and constructing buildings based on those plans, although there are perhaps a very small number of exceptions for buildings that have been formally designated works of art (perhaps you could clarify?).

    I once had an experienced architect and member of the AIA try to claim that I needed his permission to license my photographs of a home he designed to the owners of the home for their own commercial use.

    • Actually, the building do have copyright in their look, it is just that there is an exception for photographing building in public places. If it is publicly viewable, then it is likely not an infringement. But if the home or other architectural building is not publicly viewable, let’s say it is deep in the woods on private property, then you may have a problem (assuming you aren’t also trespassing). But this only applies to buildings built after 1990.

The Latest From Artrepreneur

  • Art Walks Put California on Parade

    For most Californians, walking yields to driving as the main mode of transportation. Driving is such a driving force for the state’s residents that “Saturday Night Live” created a recurring sketch about soap opera characters […]

  • The Future is Bright, Say Art Entrepreneurs

    According to a new report by the Strategic National Arts Alumni Project (SNAAP) the old adage of the struggling artist may officially be a myth. SNAAP’s special report, “Career Skills and Entrepreneurship Training for […]

  • Artist Profile: Natalia Nakazawa — Art, Work, and Life

    Natalia Nakazawa is a visual artist who works in mixed media to create paintings, tapestries, and collages. Her latest installation was displayed in a window of the iconic art deco Clocktower Building in Brooklyn’s DUMBO neighborhood. The […]

  • Art Business Conferences for the Art Entrepreneur

    Are you on your way to becoming a thriving art entrepreneur? Check out these upcoming art business conferences to increase your chances for success! The post Art Business Conferences for the Art Entrepreneur appeared first on Artrepreneur. […]

  • Eight Artist in Residence Programs to Launch Your Career

    We’ve previously reviewed how important it is to craft a bio and resume that details your art career, and today we’ll discuss one essential element that’s sure to make your career stand out: the Artist in Residence. Artist in […]

  • Write an Artist Bio to Get Noticed

    Most artists are used to expressing themselves in creative ways, but fewer understand the importance of expressing who they are in words. In this article, we'll review the creating an artist bio while offering some useful tips on its content. The […]

  • Balancing a Full-Time Job with Fulfilling Creativity

    Need more time in your day to work on creative endeavors? Here are few ideas that may help. The post Balancing a Full-Time Job with Fulfilling Creativity appeared first on Artrepreneur. […]

  • Launching an Art Startup? These Online Resources Can Help.

    Launching your own art startup can be scary. Here are a few tips and online resources that may help. The post Launching an Art Startup? These Online Resources Can Help. appeared first on Artrepreneur. […]

  • Expanding Your Art Business Beyond You [Part 2]

    Are you ready to expand your art business? Here's what you need to know about hiring and terminating employees, employee retirement plans and vacation and sick leave. The post Expanding Your Art Business Beyond You [Part 2] appeared first on […]

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]