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When design flattery goes too far

Daily Journal of Commerce

December 26th 2014

Portland architect and blogger Lucas Gray is disturbed by a trend he's noticed here.

While it's common for architects to be inspired by one another's designs, he said, some Portland projects designed by local firms are looking a bit too similar - to the point that they appear obviously copied. The worst part, Gray pointed out in a post last month on his blog "Talkitect," is that Portland architects seem to be copying designs in their own backyard.

"Our (architectural) community is very small, and everyone knows everyone else and what they're working on," he said.

The observation got Gray thinking about architectural copyright and the legal rights of the architects to protect their designs as intellectual property. If he noticed that one of his own designs was copied, Gray said he would potentially pursue legal action.

But according to Portland attorneys specializing in intellectual property law, cases involving architectural copyright are often hard to prove. Most involve architects who can attest that their drawings were used without their permission to create a nearly exact copy of a building design. Otherwise, the burden of proof becomes a lot hazier.

"There's a fine line between being copied and influenced by," said John Mansfield of Portland-based MansfieldLaw; he specializes in representing clients involved in commercial and intellectual property litigation. "How do you tell the difference? It's a hard line to draw."

Mansfield and other Portland attorneys advise clear agreements with clients where the architects retain ownership of their designs to avoid potential litigation. Architects also often are entitled to more damages in copyright infringement cases if they officially register designs through the U.S. Copyright Office, said Kevin Hayes, an attorney with Portland-based Klarquist Sparkman.

"If you're registered, it's a whole lot easier to enforce your rights," he said.

Even without an official copyright registration, architects have a legal right to protect their designs as copyrighted material and can receive monetary compensation in federal court if their work has been stolen, Mansfield said. Often, the trickiest aspect of cases involving architectural copyright is proving that a design was copied intentionally, he said.

A few years ago, Mansfield was involved in an architectural copyright case where a builder hired an architect to design a particular project and later used those same plans without the architect's permission to construct a building with only slight modifications to that original design.

"That was an easy one because they were clearly (making) a derivative work," he said. "That stuff happens. There are not a huge number of cases, at least around here, but it certainly happens."

This is why intellectual property attorneys advise architects to pay careful attention to their client contracts. Unless otherwise specified in a contract, architects retain ownership of their designs, including the drawings, even though the buildings produced with those plans are owned by their clients. The Architectural Works Copyright Protection Act, passed by Congress in 1990, defines this right, said Alicia Bell, an attorney with the Portland office of Miller Nash.

"The default rule under copyright law is the author of the work owns the work," she said.

Mansfield said he advises architects to avoid work for hire contracts where architects essentially sign away the right to retain ownership of their designs.

"You should know you're giving away what would otherwise be yours," he said.

Another place for architects to be wary while signing contracts is if they are collaborating with another firm, Mansfield said.

"There's nothing wrong with collaborating, but be sure you know who owns what," he said.

In the long run, architects will be glad they worried about these details, Mansfield said. The average federal copyright infringement case can cost $100,000 in attorney fees alone, he said.

"It is so much easier and cheaper to address these issues before you get into a contract than to resolve them afterwards," he said. "I'd much rather have people do it right and not have to do litigation."

Jeff Myhre, president of Portland-based Myhre Group Architects, said his firm pays careful attention to contracts and has never been involved in an architectural copyright dispute.

"Myhre Group Architects have never given full rights to a client," he said. "Architects generally don't like that because we design a building and then you can build it wherever you want."

Myhre acknowledged that one reason why projects in Portland could appear copied are similar demands from developers. Also, architects are following the same city building codes, he said.

"Most (of) the designs today are a response to the codes in place today, the market demands and tied to budgets and schedules," he said. "Generally speaking, they're all the same kit of parts."

For this reason, only truly unique portions of a building design are protected under copyright law, Bell said.

"It doesn't protect standard elements like gothic arches," she said. "You're going to have protection for anything that's artistic or original."

The court of public opinion may be the best way to expose architects who are copying others' designs, Gray said. It's why he wrote his recent blog post about architectural copyright with side-by-side renderings of projects he suspects were copied.

"These buildings aren't exactly the same, but they are similar enough to at least catch my eye and other people's eye that they're strongly influenced," Gray said. "Even if they're not doing it consciously, they're doing something wrong."