Intellectual Property for Residential Architecture

Intellectual property is not a large focus for architects in institutional architecture. However, architecture is considered an intellectual property, so it must be a factor in other types of architecture. To investigate in which contexts intellectual property laws are important for architecture, we interviewed Louis Bonahm, an expert in architectural law. 

There are a variety of types of architecture including residential, commercial, and institutional. The institutional architects we introduced in other sections of this project indicated that intellectual property issues have lesser importance in that type of architecture.  Louis Bonham, an architectural law attorney, explained to us that intellectual property issues are more prevalent in residential architecture.

Louis Bonham is an attorney at the Osha Bergman Watanabe Burton Law firm who specializes in architectural copyright matters and in litigation relating to architectural copyright. Louis has been practicing architectural law for about 30 years, around the time when the Architectural Works Copyright Protection Act was implemented. You can read more about Louis Bonham here.

Louis emphasized that of all intellectual property, copyright is the most important in architecture.  Trade dress and patent issues can arise, but rarely. Trade dress is difficult to achieve in architecture because it requires the development of “secondary meaning”, which is when consumers are easily able to associate a trade dress with the company that owns it. Patents are rights granted for inventions and must be novel. Louis indicated that patents are not commonly sought in architecture.

Copyright

Copyright is a form of protection in which the law grants exclusive rights to original expressions of work such as music, literature, pictorial, graphic, video, architectural works, etc. The requirements to earn copyright protection are that the work must be a copyrightable subject matter, original, and fixed in a tangible mean of expression (U.S. Copyright Office, 2024). In the architectural context, copyright protection is granted to architectural drawings and designs that are original/not copied. Copyright law grants these six exclusive rights to copyright owners:

  • Right to copy

  • Right to create derivative works

  • Right to distribute copies

  • Right to publicly perform

  • Right to publicly display

  • Right to publicly perform (digital)


Copyright protection provides benefits to architects because it prohibits others from stealing their designs and ensures that they can be fairly compensated for infringement on their designs. Louis explained how architects’ designs are automatically protected by law upon creation, and the advantages of copyright registration.

Architecture Work Copyright Protection Act 

Louis explained that the American Copyright Law on Architecture being passed was a pivotal moment in the world of architecture. 

For years it was fair game to copy anybody’s work in architecture in the United States because the U.S. refused to join the Berne Convention for a long time. Louis explained that the U.S. was pressured into joining the Berne Convention because of the tech industry. There were concerns that foreign nations would be able to copy and distribute software created by American companies such as Microsoft, Adobe, Apple, and more. The United States agreed with these concerns: 

  • In 1986 the United States joined The Berne Convention 

    • The Berne Convention is an international treaty that protects the rights of authors in literary and artistic works. The convention grants authors rights to their work, which includes the reproduction and distribution rights. The rights last the author’s life plus 50 years. 

  • In 1988 the registrar of copyright issues a report on architectural works 

    • Prior to the AWCPA, architecture was not protected under copyright laws, so the 1988 report addressed the need for legislation and protection. This set the stage for the AWCPA in 1990. 

  • In 1990 Congress passed the Architectural Works Copyright Protection Act (AWCPA), which grants copyright protection to Architectural Works 

    • Any works prior to 1990 are considered to be in the public domain.

It has been 34 years since the AWCPA has been passed. One would think that 34 years would be enough time for architects to learn not to copy one another’s work. Louis Bonham has dealt with many cases of copyright infringement in architecture and still is receiving many cases today. In these clips, Louis discusses a few notable cases such as Preston Woods v. Urban Living and a personal story. 

Louis provided us with an example of a building plan that looked identical to another building's plan. What are the consequences of copying another building’s plan? In the case Preston Woods v. Urban living, Urban living was ordered to pay $28,790,000 to Preston Wood & Associates for copyright infringement.

Infringement

Copyright infringement is violating one of the exclusive rights of the copyright owner. Intellectual property disputes happen often in architecture and Louis summarized that the most common types of disputes he sees are due to piracy, ownership issues, and use beyond the scope.

How can one prove that their copyrighted work was infringed upon? What are juries and judges looking for? The one being accused may claim that it’s their original work. Louis discusses the three things that a jury favors in copyright infringement in architecture.

  • Direct evidence of copying

  • Access to drawings

  • Substantial similarity

Copyright infringement cases can be quite expensive. What is a justifiable number that brings justice for the copyright owner as well as a reasonable punishment for the infringer? We explored how much the consequences would be in architecture and how a court would decide on an amount.

  • Actual damages + Profits earned

How can architects avoid infringing?

With the strict intellectual property laws and the threat of infringement punishments, architects may find it difficult to create original work fostering creativity and innovation without infringing on others’ work. Copying other architects’ work appears to be a recurring problem in this industry. Louis explained the best practices for architects to make designs that do not infringe on copyright works. 

  • Document everything

  • Pretty obvious… Don’t Copy!

  • Contracts

Despite the law being changed 34 years ago, many cases are still happening today. We asked Louis why architects continue to infringe upon others’ work despite the potential consequences. Are architects still adjusting to the law? He gave us his thoughts.

References

Swamplot. (2018, November 8). Urban living gets $29 million penalty for copycatting townhomes. http://swamplot.com/urban-living-gets-29-million-penalty-for-copycatting-townhomes/2018-11-08/

U.S. Copyright Office. (n.d.). What is copyright? https://www.copyright.gov/what-is-copyright/