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Friday, May 30, 2014

Are Buildings Copyrighted?

Most architects know that their drawings are protected by copyright. That’s sometimes the basis of contract sticking points (“Who owns the drawings?”) and the more tech-savvy know that limited copyright licenses can be used to limit the uses of BIM files by owners and contractors both as a method of retaining control over the process and as a limitation on the architect’s liability.
What gets less press - and this is true even in law school copyright classes, where the topic is only mentioned but not explored - is that buildings themselves enjoy a form of copyright protection.

Please note: This article applies in the US only. Other countries have different copyright laws. This is not legal advice, just a broad overview. If you need help with a legal question, contact a lawyer in your area.


Before the United States joined the Berne Convention (the international agreement on copyright protection, enacted in 1886 and joined by the US in 1988) there was no building copyright in the US except for purely ornamental works - structures that were sculpture only. The federal law that formally added copyright protection for other buildings was not enacted until 1990, and any buildings substantially completed or published before December 1, 1990, are not protected.

What Buildings Are Protected

Copyright protection now applies to buildings newer than December 1, 1990, that are capable of human occupation (e.g., houses, office buildings, even gazebos, but not monuments that lack roofs). Mobile structures - mobile homes, RVs, boats - are not protected by architectural works copyright, though they may have other forms of intellectual property protection. Modular structures assembled on-site can be protected.

What Features Are Protected

Copyright protection on buildings applies to those aspects of the design that are form, not function. In any design context, separating the two is difficult; if I ever write an extended article on the subject it will have to quote from Huxtable and Banham, feature interviews with theory professors and be unreadable by anybody without at least an M.Arch. The Congressional committee report references Michael Graves’ dichotomy between “internal” and “poetic” architectural languages. The internal is “determined by pragmatic, constructional, and technical requirements,” while the poetic is “responsive to issues external to the building, and incorporates the three-dimensional expression of the myths and rituals of society.” The report states that the intent of the law is protect the poetic language only.

In real-world terms, therefore, design decisions made for practical reasons are less likely to result in copyright protection than those made for aesthetic, cultural or dareI say whimsical reasons. (Yes, I admit, I have made design decisions for purely whimsical reasons.)

While “standard” features - e.g. a window from a catalog, a common wall assembly or a rectangular panel of fiber-cement board - are not copyrightable, creative combinations, configurations and combinations of otherwise standard items are.

What Is Infringement

A building can be accused of infringing another building’s copyright in the same ways that any other work can infringe, though most obvious and common would be actual copying or “substantial similarity” copying. The line between inspiration and copying can be fine and difficult to place.

In one famous case - which never made it to court and so never produced a legal precedent - recent architecture school graduate Thomas Shine accused architect David Childs of making the New York Freedom Tower a “substantially similar” copy of Shine’s student project. Had the case gone to court, Shine would have had to prove that Childs’ design was so similar that copying should be inferred, and that Childs had access to Shine’s design. The latter part could be proven by showing that Childs was a member of the jury that evaluated Shine’s project and that Childs had commented on the project. Childs responded that the similar elements were really industry standard and that the design was informed by the site and other unique factors.

The line between inspiration and copying is a distinction that would make many architects rightfully uncomfortable, because the practice of drawing on “precedent” studies is time-honored tradition in architecture, and perhaps this - together with the relative newness of architecture copyright - contributes to the relative scarcity of architectural copyright disputes, compared with more litigious fields such as software and music.

What Else Should I Know?

Too much to write here! It took me three law school classes and two co-op placements in the field to get a handle on copyright law. I’ll write more along these lines in upcoming posts continuing my discussion of BIM and the law and maybe one relating the recent Oracle v. Google case to architecture copyrights, but if you have any questions please email me at Andrew@AndrewLynnLaw.com.

Monday, May 12, 2014

When are building owners liable for negligence in Massachusetts?

Please note: This article only addresses Massachusetts law, and it is only a description of current events and broad outlines of the law. If you have particular questions about how property liability law affects you, you should speak with a lawyer.

Liability for injuries stemming from hazards on a property are a source of worry for property owners and their architects alike. This area of law has been evolving over the last several years in Massachusetts, notably in 2010 when the Supreme Judicial Court ruled that common negligence principles - more on what that means in a bit - would be applied to snow and ice injuries.
Recently I’ve seen two more court rulings on an exemption for property owner negligence. A state statute (G.L. c. 21, § 17C) exempts property owners from negligence liability when they permit the public to use the land for “recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefor” and a member of the public who is there fore those purposes is injured. The exemption does not apply to injuries caused by “wilful, wanton, or reckless conduct.”
The Recent Cases
The two recent cases address two of the “elements” of the exemption. To satisfy the wording of the exemption statute, several requirements are needed, which are all referred to as elements:
  1. The property is open to the public for the listed uses mentioned above.
  2. The injured person is a member of the public who is there for one of the listed uses.
  3. The injured person was not asked to pay a fee or charge to be there.
  4. The injury was not caused by willful, wanton or reckless conduct.
Negligence: For the nonlawyers, negligence happens when a person who has a duty to be reasonably careful fails to do so, causing injury to another person. “Wilful, wanton or reckless conduct” describes behavior that is legally worse than negligence - not just a failure to be careful, but a deliberate act or willful ignoring of a hazard. Number 4 on my list is read by judges as meaning that the exemption applies to negligence only, because conduct that is worse than negligence is excluded.
Also, don’t confuse negligence with strict liability! While a careless design decision might be merely negligent, a design decision that causes risks by violating the building code could result in “strict liability.” That’s a different type of case that has different rules.
“Charge or Fee”: The first case is is Patterson v. Christ Church (Mass. App. Ct. 2014). It clarifies point number 3. In that case, the plaintiff, Ms. Patterson, is a woman in her '60s who visited Boston as part of a seniors' tour group. When the group visited Old North Church, a docent ushered the group to the church’s pew boxes. When Patterson attempted to step into the box, she tripped on the step up and was severely injured, and required surgery and rehabilitation.
Patterson accused the church of negligence for not making the step more visible, and not giving any warning that the step was there. The church countered that it was not liable to her for negligence, because the church is open to the public for sightseeing (a recreational use), she was there for sightseeing, and there was no entry fee. But Patterson argued that because she paid a fee to her tour company, and the church received payments from a nonprofit that organizes tours and guides, that’s the same as the church charging fees.
That argument isn’t entirely without foundation. There have been other cases where indirect payments were considered fees - for example, the owner of a field charging a baseball league for its use, and the league collecting money from the players - so that the recreational use exemption did not apply. But what’s lacking here is a connection between the money that Patterson paid and the money the church received. The tour company did not pay the nonprofit. Under those circumstances the court would not rule that she was charged a fee, which meant that the church’s exemption argument would succeed.
“Open to the Public”: The second case is Wilkins v. City of Haverhill (Mass. 2014). It clarifies point number 1. In this case, Ms. Wilkins, a parent of a Haverhill public school student, went to the school during off hours for a parent-teacher conference and was injured when she slipped and fell on ice that had been allowed to accumulate on a school walkway. The school countered that it was exempt from negligence liability because she was there for an educational purpose.
Wilkins successfully argued that the exemption did not apply because at the time she was injured the school was not open to the public.
A property owner - and by connection those hired by the owner to do construction and maintenance - has a responsibility to act reasonably to remove - or at least give warnings of - hazards on the property. In case things do go wrong and somebody gets hurt, there are some protections in place, but it’s incorrect to make broad assumptions. For example, a school might think that because its uses are educational it will be protected from negligence lawsuits, but there’s more to it.