Orange County Branch Newsletter

February 2013

Law & CE - Two Times the Copyright Protection for Some Types of Work

Two Times the Copyright Protection for Some Types of Work

Civil engineers are entitled to copyright protection for the drawings and plans they create. This protection is generally not as broad as that provided for architectural work.  Nevertheless, there may be times when certain engineering work may qualify for this wider scope of protection.  In any event, regardless of the scope of protection available, it is still important that engineers take advantage of the copyright protections available to them.

So, What Gets Copyright Protection?

Work created by engineers and architects traditionally received copyright protection under the category of “plans or drawings,” with protection limited to preventing the unauthorized reproduction of those plans or drawings.  In 1990, the Architectural Works Copyright Protection Act (AWCPA) expanded the protection available by creating an additional category of authorship: “architectural works”—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.” Registration as an “architectural work” provides greater copyright protection than registration as a “plan or drawing” because it protects against more than simply the reproduction of the drawings or plans in their two-dimensional form.  Copyright protection for “architectural works” extends to the use of the copyrighted design for building the structure depicted in those drawings or plans, or, conversely, the drawing of plans based on a protected structure. Whether a given work falls within the purview of the AWCPA will depend upon the nature of the work being produced rather than whether the person creating it is an “architect.”

Engineers may find that they are generally unable to take advantage of this additional protection as a result of the nature of their work.  This is primarily due to the fact that the AWCPA protects the design of “humanly habitable structures, such as houses, office buildings, churches, museums, and gazebos.”  Design of other structures, like bridges, dams, and walkways, which do not qualify as “humanly habitable structures”, are not protected by the AWCPA.  For example, mechanical or grading plans, which do not create the layout of spaces for a “humanly habitable structure,” do not qualify as “architectural works” under the AWCPA.  Instead, these works typically fall under the category of technical drawings for which copyright protection is generally limited to unauthorized reproduction of the drawings themselves.

Consequently, someone building from engineering plans, like grading plans, may not violate an engineer’s copyright if the drawings themselves have not been reproduced; but, if that person makes a copy of the grading plans without license to do so, this reproduction would constitute infringement.  To take this one step further, it is conceivable that a person who builds from an unauthorized copy of the grading plans would be infringing on the engineer’s copyright, but courts have reached mixed conclusions on this front. 

Certain engineers, such as structural engineers, may more commonly author works that fall within the AWCPA. For example, in at least one case, the court found that framing plans for a home, which provided for the layout and composition of spaces, were protected, such that the later use of the plans in the building of a home substantially similar to the one depicted by the plans was copyright infringement.  Although the plans in that case were originally drawn up by an architect, framing plans created by a structural engineer would arguably qualify for the same copyright protection, so long as these plans provide for the layout and composition of a “habitable structure”. 

Overall, the key is that the original elements of your work are protectable as copyrightable work.  If that work qualifies as both an architectural work (in that it provides the overall layout and composition of the space) and a technical drawing, registration of the work under both categories is recommended.

How Can an Engineer Protect their Work?

Where copyright protection is available, the benefits are the same for architectural works or technical drawings.  Therefore, it is advantageous for an engineer to include a contract clause providing that the engineer owns the copyright to its original works of authorship (that is the copyright language for the work prepared by the engineer) and is granting the owner (or whoever you are contracting with) a nonexclusive license to use the plans for the particular construction, but noting that if the engineer terminates the contract that license will be terminated.  This may give the engineer the option of taking legal action to prevent the later use of the engineer’s plans without the engineer’s receiving payment.  Put another way, if you have a right to terminate a contract for nonpayment, and the license for your client to use your plans terminates when you terminate the contract; you have created a strong incentive to get yourself paid—if you aren’t paid, your client may not be able to use your plans.

Further, although copyright ownership comes into existence at the time a work is created, the best practice is to register your work with the U.S. Copyright Office as soon as possible, since the availability of statutory damages in a copyright infringement action depends upon whether registration occurred before or after the infringement.  The exact point of when registration should be made is a factual question that depends in large part on the nature of the work you are preparing.  In some cases, plans created as early as during the schematic design phase may be sufficient for registration, whereas in other cases, there may not be enough “meat” on the plans until you get through the construction document phase.  Registration is not a difficult process, and can be done online with the United States Copyright office at [url=][/url].

Please contact us at our South Pasadena, Orange, San Diego or Oakland offices to discuss further.

David E. Barker, Esq.
1100 El Centro
South Pasadena, CA 91030
Phone:  (626) 243-1100
Fax:  (626) 243-1111
[email protected]

 Alexandra N. Krasovec, Esq.
 750 The City Drive, Suite 400
 Orange, CA 92868
 Phone:  (714) 823-4100
 Fax:  (714) 823-4111
 [email protected]

Nothing contained within this article should be considered the rendering of legal advice.  Anyone who reads this article should always consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.

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