How Does Copyright Protect Architecture?

Written by Managing Principal, Jennifer Tutty

At Studio Legal, we love educating our architectural clients on the scope and value of their intellectual property rights and in particular, how copyright law can be used to help better commercialise and be duly recognised for their work.

Our Managing Principal Jennifer Tutty has put together a handy Q&A of all the things architects (and those working with architects, such as interior designers, photographers, builders, trades people and developers) need to know about copyright law.

Does Copyright Protect Architecture?

Yes, it does.

In Australia, copyright law protects original ‘works’ and ‘other subject matter’ created by a human ‘author’.

Protected works include literary, dramatic, musical and artistic works. ‘Other subject matter’, which are protected, are sound recordings, films, television, sound broadcasts and published editions. More about this below!

What Does the Copyright Act do to Protect an Architect’s Work?

Artistic works and literary works are protected under the Copyright Act 1968 (Cth) (Copyright Act) in Australia.

Under section 10 of the Copyright Act, “artistic work” means:

(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

(b) a building or a model of a building, whether the building or model is of artistic quality or not; or

In terms of the definitions of ‘drawing’, ‘building’ and ‘literary work’, these are defined under the Copyright Act as follows:

“drawing” includes a diagram, map, chart or plan.

“building” includes a structure of any kind.

“literary work” includes:

(a) a table, or compilation, expressed in words, figures or symbols; and

(b) a computer program or compilation of computer programs.

Therefore:

1. Sketches, architectural drawings, computer aided drawings, diagrams, charts and plans are protected by copyright as artistic works.
2. Completed buildings and building structures of any kind are protected by copyright as artistic works.
3. Photographs of buildings are protected as artistic works.
4. Building models are protected by copyright as artistic works.
5. Written materials such as written submissions to support planning applications are protected by copyright as literary works.
6. Marketing communications, articles and blogs are protected as literary works.

Who Owns Copyright of a Building Design?

Unless otherwise agreed in writing and subject to some exceptions (i.e. when working for certain government clients), an architect shall own the copyright in sketches, architectural drawings and designs, computer aided drawings, diagrams, charts and plans created by them in relation to a building project.

Architects will also be the owners of the copyright in completed buildings and building structures of any kind which are constructed using their design materials as well as the copyright in any building models created using their design materials.

About owning the buildings – pretty cool for Architects, right? (You’d be surprised about the amount people who don’t actually know this!)

Does Copyright Protect Architectural Ideas and Concepts?

No! Copyright does not protect architectural ideas, styles, techniques and concepts per se.

These ideas must be expressed in a material form to be protected. For example, if you talk about an idea for architectural project with another person, this will not be protected.

However, if you create physical or digital records of your ideas or concepts or using your style or concepts, then your idea has been put into ‘material form’ and may be protected.

What Requirements Must be Met for an Architect to Receive Copyright Protection?

The first requirement is that the creative idea must have been expressed ‘in a material form’ (i.e. written down on paper, entered into a computer programme). As outlined above, copyright does not protect ideas per se.

The second requirement is that the work or subject matter (i.e. the architectural plans or written submissions) must be ‘original’. Originality, for the purposes of copyright, does not require artistic skill or innovation. Rather the work must be attributable to the creator’s skill, labour or judgment.

Who Will be The Owner of Copyright Materials Created by Architects?

Generally, the ‘author’ of an artistic or literary work owns the copyright in the work although there are some exceptions.

The Copyright Act does not define who is an ‘author’, however the author will usually have put in creative skill and effort in creating the work.

What About Commerical Clients?

A commercial client who commissions architectural services from an architect will not automatically own the copyright in the copyright materials created under that engagement. Copyright remains with the architecture (unless otherwise agreed).

What About Government Clients?

The rules are different however where an architect provides services to the Commonwealth, State or Territory Government (or their agency). Where an architect prepares copyright material at the government’s direction, the government will automatically own that copyright material.

What About Employees of Architectural Firms?

It is important to note that employees of architecture firms will automatically assign copyright materials they create in the course of their employment to their employers. However, if architecture firms hire contractors to create copyright materials, the contractors will retain ownership of the copyright in those materials, unless the contractor agrees to transfer the copyright to the architecture firm.

Do You Have to Register Copyright for Architecture?

In Australia, copyright protection is an automatic right that is created as soon as the work is put into material form.

However, you do not need to register it, nor do you have to display the © symbol, in order for your work to be protected. We do however recommend a copyright notice is used on copies of an architect’s work.

What Rights Does an Architect Who is the Copyright Owner of Artistic Works Have?

The copyright owner of an artistic work has the exclusive right to:

1. Reproduce the work.
2. Publish the work; and
3. Communicate the work to the public (i.e. via electronic means).
4. Assign or licence any of the above rights to others.
5. Take legal actions against infringers.

For example, if you are the copyright owner in architectural plans or a building, you have the exclusive right to:

1. Make reproductions of those things (e.g. digital copies or photographs).
2. Publish the work for the first time (e.g. sell photographs of the building).
3. Communicate the work to the public (e.g. post 3-D renders or photographs of the building online)

What Rights Does an Architect Who is the Copyright Owner of Literary Works have?

The copyright owner of a literary work has the exclusive right to:

1. Reproduce the work in a material form.
2. Publish the work for the first time.
3. Communicate the work to the public.
4. Perform the work in public.
5. Make an adaptation of the work.
6. Assign or licence any of the above rights to others.
7. Take legal action against infringers.

How Can an Architect Deal with Copyright?

There are 2 mains ways to deal with copyright. The first is by assignment (this means transferring ownership of copyright) and the second is by licence (giving permission for someone else to use the copyright).

Assignments

For an assignment of copyright to be valid, it must be in writing and signed by or on behalf of the copyright owner. Copyright ownership can also be transferred by way of a will or other testamentary documents.

Licensing

Licences can be provided as follows:

1. On an exclusive basis (the licensee has the exclusive rights to use the copyright);
2. On a non-exclusive basis (the licensee has the non-exclusive rights to use the copyright); and
3. On a sole basis (the licensee is the only other person entitled to use the copyright aside from the copyright owner).

How Long Does and Architect’s Copyright Last For?

Generally, copyright in an ‘artistic work’ will last for the life of the person who created the work plus 70 years after their death.

What are Moral Rights in Architecture?

If an artistic work or literary work is protected by copyright, then the creator of the work also has ‘moral rights’ in that work.

Moral rights include:

-The right to be attributed as the author of the work;
-The right not to have the work falsely attributed to someone else; and
-The right to take action if the work is treated in a derogatory way.

In some countries, to claim moral rights over a copyright work, the creator has to proactively ‘assert’ your moral rights (i.e. NZ and UK). In Australia however, a creator simply acquires moral rights upon creation of the copyright work.

Do Architects or Architecture Firms have Moral Rights?

Moral rights belong to individual creators not organisations or businesses (such as architecture firms).

Unlike copyright, moral rights cannot be licensed or transferred to another person. The moral rights remain with the original creator of the work, even if that person licences or transfers the copyright.

Therefore, architects who have authored artistic or literary works will have moral rights in those copyright works. However, their employers will not acquire any moral rights over those copyright works.

Can Architects Waive Their Moral Rights?

In Australia, it is not possible legally to ‘waive’ your moral rights like it is in some countries. However, an author can consent in writing to other people’s specific actions or omissions which would, in the absence of consent, amount to an infringement of their moral rights.

These types of moral rights consents are typically seen in architectural services agreements especially with developers and larger building contractors.

How Should Architects and Architecture Firms be Attributed for Their Work?

Where They Are the Copyright Owner

If an architect or an architecture firm owns the copyright in an artistic or literary work (i.e. a building, photograph, design drawings, plan or written document to support a planning application), they should be listed as the owner of the copyright.

Examples of a copyright notice used in Australia is as follows:

Where They Have Moral Rights in Their Work

It is common for employee architects of architecture firms to agree to moral rights consents in their employment agreement whereby their employers do not need to credit them as creators of their work for client projects.

Therefore, individual employee architects are not commonly attributed as creator of various architectural assets on projects, although sometimes architects who are owners of the firm or senior will be. See ‘Jennifer Tutty’ example below.

If a firm hired a special contractor interior designer to work on a project, then it is likely that that contractor will want to be attributed as a contributor to the creation of the interior designs. See ‘John Smith’ example below.

The 105 High Street Office.

Architectural design by Jennifer Tutty.

Interior design by John Smith.

Can a Photographer Take and Share Photographs of Buildings Designed by an Architect?

From a copyright perspective, the answer is yes!

Under section 66 of the Copyright Act, an exception applies allowing people paint, photograph, film or draw buildings without infringing the copyright of the owner of the building.

However, if the architect has acquired a reputation in the building (for example the architect’s Danish architect Jørn Utzon has a reputation as the designer of the Sydney Opera House), the photographer may commit the tort of passing off, or engage in misleading and deceptive conduct under the Australian Consumer Law if the photographer shares the photograph for commercial purposes.

Can An Architect Use A Photographer’s Pictures of a Building They Designed?

It is a common misconception that architects can automatically use photographs of their work, especially if shared on social media platforms like Instagram.

While a photographer may be more than happy to have an architect reshare and use their photographs, technically it will be copyright infringement if you do not seek their permission to do so.

Furthermore, if you fail to credit the name of the photographer in relation to the sharing of any photo, you will have infringed the moral rights of the individual photographer who took the photo.

Does an Architect Need Permission of a Land Owner or Occupier to Take and Publish Photographs of Architecture on Their Land?

To avoid liability for trespass, architects should obtain permission from the owner and occupier of private property before they film and photograph their work carried out there.

In addition, if the owner or occupier has acquired a reputation in the location, the architect may commit the tort of passing off, or engage in misleading and deceptive conduct under the Australian Consumer Law if the architect shares images of their work on the location without the owner and occupier’s permission.

Architects should include an express clause in their contract that the client agrees they can attend the site to film and photograph their work and to use those film and photographic assets to promote the project and their business generally.

Further Information

For more information about copyright law, check out this blog post:

–9 Common Mistakes People Make About Copyright

If you’d like to speak to one of our lawyers about copyright law in relation to architecture, please contact us through our online form or via email at hello@studiolegal.com.au.

Written by Managing Principal, Jennifer Tutty

Published 18 July 2024.

Photo by Ibrahim Rifath on Unsplash

DISCLAIMER

The information in this article is of a general nature. It does not constitute formal legal advice and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.

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