[Copyright] Architectural Drawings. Etc.

Thu Apr 18 16:18:54 EDT 2024

Craig,

Further to Bob’s comments:

>> Registration has not been applied for or determined (a prerequisite to file an infringement claim) and such registration I understand takes 6-7 months these days after application, with more speed (not sure how much quicker?) for an $800 special processing fee.

In my experience, the $800 special processing fee is effective at speeding up the registration process. The last time I did this (at the height of the COVID pandemic), I received the certificate of registration less than a week after filing. That should be soon enough for most litigation, although longer than you would like if you are considering an immediate run to the local federal court on a TRO motion.

>> It seems that statutory damages and fees are unavailable under copyright law (, but what of the use of the drawings going forward toward the completion of the building where construction has not yet commenced?

There may be an argument that statutory damages and attorneys’ fees should be available for all uses after the date that you file the copyright application (which usually becomes the date of registration if the application is approved), including any uses of the copyrightable work (the plans) to start the building. Copying the plans for the competition certainly sounds like a copyright use, but I don’t know whether actually building the building would be deemed a different set of uses that resets statutory damages and attorneys’ fees under 17 USC 412 (the key phrase is “any infringement … commenced before the effective date of registration”).

In any event, you will have actual damages and injunctive relief available to you.

All the best,

Fred

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From: Copyright <copyright-bounces at oppedahl-lists.com> On Behalf Of Cumbow, Bob via Copyright
Sent: Thursday, April 18, 2024 3:57 PM
To: For copyright practitioners. This is not for laypersons to seek legal advice. <copyright at oppedahl-lists.com>
Cc: Cumbow, Bob <Robert.Cumbow at millernash.com>
Subject: Re: [Copyright] Architectural Drawings. Etc.

One important question: When P created work as part of the team, was there a work-for-hire agreement, or an employment agreement containing a work-for-hire provision? If so, P does not own copyright in her contributions; but if not, P owns copyright, though she may be in a joint authorship situation with one or more other members of the team.

Bob
 Cumbow
Partner
Miller Nash LLP
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From: Copyright <copyright-bounces at oppedahl-lists.com<mailto:copyright-bounces at oppedahl-lists.com>> On Behalf Of Craig McLaughlin via Copyright
Sent: Thursday, April 18, 2024 12:51 PM
To: 'for copyright practitioners' <copyright at oppedahl-lists.com<mailto:copyright at oppedahl-lists.com>>
Cc: cmlaw at jps.net<mailto:cmlaw at jps.net>
Subject: [Copyright] Architectural Drawings. Etc.

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Trying to figure out what a joint author (P) of architectural drawings can do to protect her rights.  Assume P is part of a team who supplied a proposal including architectural drawings for a new building, of which P contributed.  The team won the competition, but then several months ago P was cut out as to prize money and, of course, the much larger fees going forward to complete the project.  Registration has not been applied for or determined (a prerequisite to file an infringement claim) and such registration I understand takes 6-7 months these days after application, with more speed (not sure how much quicker?) for an $800 special processing fee.  It seems that statutory damages and fees are unavailable under copyright law (, but what of the use of the drawings going forward toward the completion of the building where construction has not yet commenced?  Can actionable infringements going forward be expected?   Theories appreciated.

Craig McLaughlin
Seal Beach, CA
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