[Copyright] Architectural Drawings. Etc.

Thu Apr 18 16:34:28 EDT 2024

That depends on which Circuit you are in.  The control test is primarily a creature of the 9th Circuit, as it can let the dominant party squeeze out others who thought they were contributing to a joint work.  

From: Copyright <copyright-bounces at oppedahl-lists.com> On Behalf Of Jessica R. Friedman via Copyright
Sent: Thursday, April 18, 2024 4:29 PM
To: For copyright practitioners. This is not for laypersons to seek legal advice. <copyright at oppedahl-lists.com>; cmlaw at jps.net
Cc: Jessica R. Friedman <jrfriedman at litproplaw.com>
Subject: Re: [Copyright] Architectural Drawings. Etc.

P would be a joint author only if the dominant author  -- if there is one -- intended that she be one. 

Jessica R. Friedman

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From: Copyright <copyright-bounces at oppedahl-lists.com <mailto:copyright-bounces at oppedahl-lists.com> > on behalf of Cumbow, Bob via Copyright <copyright at oppedahl-lists.com <mailto:copyright at oppedahl-lists.com> >
Date: Thursday, April 18, 2024 at 4:20 PM
To: cmlaw at jps.net <mailto:cmlaw at jps.net>  <cmlaw at jps.net <mailto:cmlaw at jps.net> >, 'For copyright practitioners. This is not for laypersons to seek legal advice.' <copyright at oppedahl-lists.com <mailto:copyright at oppedahl-lists.com> >
Cc: Cumbow, Bob <Robert.Cumbow at millernash.com <mailto:Robert.Cumbow at millernash.com> >
Subject: Re: [Copyright] Architectural Drawings. Etc.

If no work-for-hire agreement was operative, then the team project was likely a work of joint authorship, which means that everyone who contributed copyrightable subject matter to the finished product is a full owner of the copyright in the finished work, and free to exploit the work without the permission of the other joint authors, but must share equally with the other joint owners any compensation received from exploitation of the work. This can quickly become a complicated mess, which is why people who set out to create a work “as a team” should have a clear written agreement about copyright before pen is ever set to paper.

Bob

 Cumbow

Partner

Miller Nash LLP

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Direct: 206.777.7468

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Office: 206.624.8300

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From: cmlaw at jps.net <mailto:cmlaw at jps.net>  <cmlaw at jps.net <mailto:cmlaw at jps.net> > 
Sent: Thursday, April 18, 2024 1:11 PM
To: Cumbow, Bob <Robert.Cumbow at millernash.com <mailto:Robert.Cumbow at millernash.com> >; 'For copyright practitioners. This is not for laypersons to seek legal advice.' <copyright at oppedahl-lists.com <mailto:copyright at oppedahl-lists.com> >
Subject: RE: [Copyright] Architectural Drawings. Etc.

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  _____  

My understanding of copyright law, “work for hire” does not apply to architectural drawings unless it was within scope of employment.  Team was comprised only of independent contractors and there was no employment relationship or other agreement among them, including as to ownership.  Joint owners are entitled to pro rata share of benefits derived by any owner.

Craig

From: Cumbow, Bob <Robert.Cumbow at millernash.com <mailto:Robert.Cumbow at millernash.com> > 
Sent: Thursday, April 18, 2024 12:57 PM
To: For copyright practitioners. This is not for laypersons to seek legal advice. <copyright at oppedahl-lists.com <mailto:copyright at oppedahl-lists.com> >
Cc: cmlaw at jps.net <mailto:cmlaw at jps.net> 
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

605 5th Ave S, Ste 900 | Seattle, WA 98104

Direct: 206.777.7468

 | 

Cell: 425.443.0990

 | 

Office: 206.624.8300

 <mailto:Robert.Cumbow at millernash.com> Email

 | 

 <https://www.millernash.com/professionals/robert-c-cumbow> Bio

 | 

 <https://www.millernash.com/firm-news> Insights

 | 

 <https://www.millernash.com> Website

Our attorneys regularly offer insights to address the challenges faced by our clients. To visit the Miller Nash industry-focused blog overview page on our updated website:  <https://www.millernash.com/firm-news> please click this link. 

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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
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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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