Rogers Towers: Copyright Issues Arise in Custom Residential Home Construction

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Are you anxious to build a custom home after the economy recovers? Are you a builder or architect looking to rekindle your business? Now may be the time to consider the labyrinth of copyright issues that may arise in custom residential home construction. Twenty years after enactment of the Architectural Works Copyright Protection Act (“Act”), there remains significant misunderstandings about what actions constitute infringement of protected architectural works. Under the Act, one form of infringement can occur by merely building a structure from copyrighted plans, and courts have extended liability to architects, builders, and even home purchasers under the theories of vicarious infringement and active inducement.

A common scenario arises where a prospective home purchaser considers a variety of preexisting floor plans and home designs to customize a dream home. After selecting certain features from prior designs, the purchaser may approach a builder for cost and constructability estimates. Before construction, either party may engage an architect to finalize the building plans. When the home is built, an unrelated copyright owner suddenly steps forward claiming infringement of a preexisting set of plans. Under the United States Copyright Act, the copyright owner can seek statutory damages of up to $150,000 for each act of “willful infringement” by the builder, the architect, and the purchaser.

To avoid infringement accusations, prior to preparation of the custom plans each party should be clear on what prior designs were used by the home purchaser to develop his or her set of customized design features, and with whom the prior designs originated. Seasoned architects and builders will know the importance of securing the appropriate permission to use prior designs, especially when the purchaser is unfamiliar with the residential home building industry and the copyright issues involved. However, in many instances the originator of preexisting plans cannot be identified or located, and to prevent delays and other business disruptions, many builders and architects have acquired insurance policies covering acts of copyright infringement. In other scenarios, contractual indemnities may be used to allocate protection between the home builder, architect, and purchaser. The intellectual property attorneys at Rogers Towers have significant experience in navigating these complex legal issues.