Architectural copyright law gives judges the power to impose hefty damages for infringement. This area of copyright law covers architectural works, which broadly encompasses not only plans, but also buildings themselves. As a result, companies should take protective measures to avoid copyright risks. Below is a short checklist of actions that companies can take to insulate themselves from significant liability, and also protect their own intellectual property.
- Require Indemnification.
If your company is reviewing architectural plans for a project, you need an indemnification clause to protect against the risk that the plans infringe on an existing copyright. The indemnification should cover all forms of intellectual property claims arising out of your company’s review and use of the plans.
- Back up with Insurance.
Double-check your insurance coverage to ensure your company is protected against architectural copyright infringement claims and other forms of intellectual property claims. Many standard policies do not include this kind of protection, and damages flowing from an architectural copyright infringement claim can be wildly unpredictable and far-reaching.
- Insist on Independent Creation of Architectural Plans or a Warranty of Non-Infringement.
In addition to getting an indemnification clause, companies should also insist on a certification of independent creation, or a warranty of non-infringement, which confirms that an architect has either created its plans independently, and/or has a license to use others’ copyrighted work.
- Protect Intellectual Property with Non-Disclosure Language.
While it is not essential for all construction companies to seek copyrights to protect their intellectual property, non-disclosure agreements should be obtained from any person who will have access to your company’s sensitive intellectual property or information. Examples of information that should be protected are client lists, marketing materials, proposals, and any other documents that will reveal sensitive information created by your company.
- Know that Innocent Infringement is not a Defense.
Companies must be aware that innocent infringement cannot be used as a defense in copyright litigation. However, taking the above steps can provide some additional protection against a meritless architectural copyright infringement claim.