Building designers and copyright – what do you need to be aware of?
The good news… Copyright is automatic!
If you are the creator of a design or drawing, you automatically own copyright in that artistic work, and the legal right to be acknowledged as the original creator of the design in the work. If someone else breaches your copyright, they may face legal penalties or potentially be ordered to pay damages and costs in court.
The importance of a good client-building designer agreement:
Copyright ownership stays with you (or your firm if you are an employee) as the designer until/unless you assign or licence that design to a client or third party. Look carefully at your client-designer agreement to ascertain exactly when, if and how copyright passes from you to your client, and what the conditions are, and ensure that you fully understand and are happy with those terms.
It is standard that the building designer retains copyright ownership in their work and licences copyright to the client, however this can vary.
Consider the “what-ifs”
Sometimes you may be commissioned for a design and complete the work, however the client later wants to extend on that design. Ensure your agreement with clients is clear as to what is contemplated for each project, and whether there is an implied licence or not for the client to expand on that design at a later stage.
Once a project is completed, you may still hold moral rights in your designs – which clients must respect.
Exclusive and non-exclusive licences:
Depending on the project and the client, it is possible to offer the client an exclusive licence (that allows the client exclusive use of that design), or a non-exclusive licence (that allows you to replicate your design for other clients).
Watch out for implied licences:
Make sure from the outset your clients understand your initial drawings provided to them at the beginning of the design process are protected by copyright and belong to you.
If there is no agreement, the client may still have an implied licence to use the work they have commissioned and paid you for.
Disallow unwanted implied licences by ensuring all designs have your letterhead on the page together with the © symbol. You may even wish to state no licence is granted or implied to further communicate copyright is not being licenced.
How to make sure you do not infringe others’ copyright:
Do not copy a design you have seen and redraw it with some changes. This will still be an infringement of that design if it is substantially similar. Instead, consider your project and the space carefully – what design qualities would be most suited to it?
If it is absolutely necessary to use someone else’s design, or a substantially similar version of that design, you must seek permission to do so. You will have to inform them of any changes you intend to make.
What to do if you think your copyright may be infringed:
If you have had your copyright infringed, it is a good idea to seek advice before you do anything else. Sinclair + May regularly advise clients of their rights in respect of copyright infringement and provide strategic guidance as to how to deal with the issues that arise. If you have a query, give us a call on (03) 9111 5660.
This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation.
Published Nov 9, 2018Go back