If you are in the custom design build industry, you may have had the unfortunate experience of walking a potential customer through your spec home or sharing custom floor plans with them, only to find that months later the same customer has constructed your plan with another builder.
Regrettably, this happens all too often within the residential construction industry, but by understanding what is protected under copyright law and by taking additional steps and precautions during the initial design phase, you as a builder can be better positioned to prevent or even stop a customer from copying your plans. By having a general knowledge of copyright law, you also will protect yourself from unwanted, time consuming and potentially costly copyright infringement claims.
What is protected?
Copyright law protects any unique expression fixed in a tangible medium. This means that generally anything ORIGINAL that you draw, write, type, paint, record or digitally produce is protected by copyright law the moment you put it to paper, save it in the “cloud” or even draw it on the back of a napkin. This includes custom floor plans, drawings and sketches that you develop. By simply drawing a unique floor plan, you, as the author of that plan, own the copyright in it.
Keep in mind that to obtain copyright protection though, your plans should have some uniqueness or originality to them. The plans should be developed by you and not developed off another third party’s custom plans or a copy of a unique house you toured. Copyright protection is provided within the unique, non-functional elements of your plans. The plans you wish to protect should consist of more than mere functional, standard arrangements present in every “cookie-cutter” type home plan. Your standard split level starter home, absent some substantial customization, likely will not include many elements protected by copyright.
Why is this important?
Owning a copyright grants you the exclusive rights to: (i) copy the plan, (ii) produce other custom plans off of the original plans; and (iii) most importantly, build the plans. By owning a copyright, you and you only control it. Without your permission the customer that walked through your custom built spec home or surveyed your floor plan at the home show, cannot reproduce your plans or construct the same home, without potentially being liable for copyright infringement and damages to you.
How do I better protect myself?
Even with these protections available to you, there are additional steps that you should consider taking to notify others of your rights in the plans, prior to and after developing the plans.
Get it in Writing.
The party who drew, produced or sketched the plan is the owner of the copyright. Issues can arise if you regularly use third party architects or engineers to develop your drawings and plans. If you have a unique idea or plan that a draftsman, architect or engineer assists you in finalizing, it is important that prior to development of the plan, you confirm in a signed writing with the third party that any and all ownership in the plans, including the copyright, is a work for hire and is assigned to you.
In the same manner, you should consider entering into a Design Agreement with your potential customer that establishes ownership in the plans. If a homeowner is working with you on customizing a unique plan, potentially the customer could claim that he or she owns or is partial owner of the plans. It may be fine for the customer to use the plan for his or her home, but you may want to license the plan or build similar homes for others. To ensure that you own the copyright in the plans, ownership of the plans should be established in a signed writing with the customer.
Register the Plans.
You should get into the practice of registering your plans with the U.S. Copyright Office. Registration is a fairly simple process and can be completed online. Copyright registration is not necessary to own a copyright in a plan, but serves to put others on notice of your rights, and evidences the date you actually developed the plans. Registration is also necessary to bring an infringement action in Federal Court. If you register prior to someone copying your plans, it also grants you the opportunity to recover additional remedies such as statutory damages, court costs and attorneys’ fees.
Use Copyright Notices.
Oftentimes customers may take a plan you provided to them to another architect or builder. Putting a simple copyright notice on all copies of your plans should make third parties think twice before making copies of it or using it without contacting you first. The copyright notice can be as simple as adding a footer on each page of the plans that includes the ©, the date you developed the plans, your name and the phrase “All Rights Reserved”. You also should consider adding an additional disclaimer which provides that any copying, reproduction or use of the plans can only be completed with your prior written consent.
How do I keep myself out of trouble?
Just as you should protect your plans, you should also take steps to ensure that you do not infringe on another party’s protected works.
Inquire as to the Source of Customer Plans.
If you receive any plans, sketches or drawings from a customer, architect or other third party and they request that you build it or finish the plans for their site, be sure to inquire as to where they obtained the plans and, if possible, have them confirm in writing that they have all rights to utilize the plans and to hold you harmless if they do not otherwise have permission. Even if you are not aware of the source of the plans, if you copy someone’s unique third party plans, you would be liable for copyright infringement. If any other builder or architect’s logo or name is on the plans or if it appears such information has been removed, proceed with caution and make additional inquiries if you decide to utilize the plans.
Slight differences do not prevent Infringement
Keep in mind also that the test for infringement is substantial similarity between the plans. Therefore, if building or developing plans from an existing set, merely changing the size of a room or moving a window or a door or two in an original custom plan without consent of the copyright holder, generally will not keep a court from finding that you infringed on the original work. This is a general misconception within the industry.
While copyright law and your rights can often be a somewhat murky subject, the above knowledge will better prepare you for protecting your intellectual property assets and the investments you have made in unique custom home plans.
The information provided within this article is a broad overview and general discussion of only some of the major issues to consider in copyright protection of home plans and is not intended to be legal advice. You should seek the advice of competent and qualified counsel to review the specific situation regarding your matter.
© 2016 Rinke Noonan