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Ask the Lawyer — About Copyright Protection for Buildings and Plans

Q.  My business partner and I are at odds over whether we can build a house using a design similar to one we recently saw in our local Parade of Homes. I say that we can so long as we do not use the exact design and we do not use the original plans. My partner disagrees and says that we could be sued for copyright infringement if we build that house without first obtaining permission. How does copyright apply here?

A.  You cannot avoid copyright infringement by making a few changes to someone else’s design. The test for copyright infringement is whether the works in question are substantially similar. The focus is on the overall impression of the two works, not on a detailed comparison of their individual differences.

A copyright protects "original works of authorship." Copyright protection is significant because it gives copyright owners property rights in their original works, including the exclusive right to: reproduce, or copy, the work; improve upon it; display it publicly; and distribute copies.

Copyright protection extends to building designs. This was not the case until fairly recently. Prior to 1990, copying a house structure, without copying the plans, did not usually constitute copyright infringement. That changed with enactment of The Architectural Works Copyright Protection Act, which extended protection to a new category: architectural works.

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An “architectural work” is defined as “the design of a building as embodied in any tangible medium of 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.”

Consequently, if you build that house you might be subject to copyright infringement even if you do not use the original plans because the act of copying a constructed home infringes on the designer's copyright in the design of the building.

Copyright infringement can be costly. A copyright owner who registered the design with the United States Copyright Office prior to the infringement may recover either actual damages or damages provided by the Copyright Act of between $750 and $30,000, as determined by the court.

And if the court determines that the infringement was willful, it may award statutory damages of up to $150,000.

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If you have questions for Ask the Lawyer, click here.

There is no guarantee that your question will be answered in this format, so if you have a particular legal concern that requires immediate attention, contact the NAHB Legal Research Service at 800-368-5242 x8491.

This information is provided as a service of the NAHB Legal Action Committee and NAHB Building Products Issues Committee. The information is intended to familiarize you with the law in this area. It is not intended to be an exhaustive presentation of legal information on this particular subject, and in no way constitutes an opinion of law. Your own attorney must review this information to determine how it may apply to your particular situation.

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