For example if the amount of the payment is below Royal Institute of British Architects RIBA standard rates the right to use the drawings has been found to be limited only to their submission for planning consents and not for the purposes of construction. His Lordship indicates the presence of an implied licence between the architect and the commissioning party, although there may be issues as regards the transfer of that licence or grant of right of use under that licence to others where such transfer or grant was not within the contemplation of the parties at the time of contracting.
The copying of a work is an act restricted to the copyright holders and the re-use of the drawings may be considered unauthorised use in the absence of express terms. Where drawings have been amended the position is different. A key point here is whether the amended drawings are new artistic designs capable of their own copyright.
Separate copyright subsists in each "original" work. It does not depend upon the exercise of original or independent thought but on the author having expended sufficient independent skill, labour and judgement to justify copyright protection for the result.
Therefore, if a new drawing has been created, albeit based on a previous drawing, and sufficient skill, labour and effort has been expended so as to make that drawing original, then it would be a new copyright work. There may still be the argument with respect to any new amended drawings that use of the original drawings was not permitted, if a substantial part of the original drawings are being copied, however this risk is unavoidable.
When commissioning architectural drawings to use, amend or reproduce those drawings for the purposes of construction, ensure all parties are clear from the outset what the extent of your rights to use the drawings are, whether the architect is willing to transfer copyright outright or subject to licence, and whether this covers all intended use.
Ideally this will be encapsulated in a written contract; otherwise you may only have limited implied rights which may be challengeable and prevent you from using the drawings for the purposes intended. If you would like to discuss this or any other related matter, please get in touch with a member of our team. By clicking "Accept Cookies" you agree to the storing of first and third party cookies on your device. We use these to enhance your site experience and assist in our marketing efforts.
Home HM Insights September If you build it … you better make sure you have copyright over the design. HM Insights. When expression is so limited, idea and expression merge; expressions merged with ideas cannot be protected lest one author own the idea itself. Features that are as a practical matter indispensable, or at least standard, in the treatment of a given idea are not protected by copyright.
For example, Neoclassical government buildings, colonial houses, and modern high-rise office buildings are all recognized styles from which architects draw. Elements taken from these styles are not protected. Likewise, certain industry standards or market expectations for homes or commercial buildings and design features used by all architects because of consumer demand receive no protection.
Any design elements attributable to building codes, topography, structures that already exist on the construction site, or engineering necessity are not protected. Generalized notions of where to place functional elements, how to route the flow of traffic, and methods of construction are unprotected.
In applying the extrinsic test, only those elements of a work that are protectable can be compared. Once the unprotected elements are filtered out and disregarded, the court considers the scope of the copyright. If few similarities remain after the unprotected elements are set aside, the scope is thin. In summary, the level of copyright protection depends upon the subject matter and original creativity contained in the plans.
If that were so, only one architect could design kitchens. Oman , F. Ocean Coast Props. Any copyrightable work can be sliced into elements unworthy of copyright protection. Books could be reduced to a collection of non-copyrightable words. Music could be distilled into a series of non-copyrightable rhythmic tones. A painting could be viewed as a composition of unprotectable colors. Nevertheless, a limiting principle constrains this reductionism. Lollytogs Ltd.
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