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Message - Re: Royalties, Copyrights and Patents

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Posted by  Jim on June 25, 2003 at 06:01:38:

In Reply to:  Royalties posted by Vince on June 24, 2003 at 20:43:55:

It would certainly be novel for an archiect or designer to receive any royalty for their design! That is because royalities were traditionaly granted to authors since they create a product that is theirs alone (book, article, screenplay, etc.) and are not working for hire as is an architect. An architect can create a type of royality by licensing or franchising his design to others, but usually that is a special business arrangement quite different from the artistic/engineering discipline of a designer. Architects, as you know, usually work for someone else, thus they are according to law, workmen for hire, not artists or authors creating a work without any market directly involved. It is difficult to imagine any 'employer' of an architect ordering a design and allowing the architect to then sell the exact same design at will. Usually the contract between an architect and his customer, the owner, stipulates that the design is the property of the owner upon completion of the drawings and payment of the agreed fees. It is then a matter of real estate law once the project breaks ground, not copyright law which governs royalities. In reality, an architect does retain a tacit copyright to his work UNTIL such time as he sells it, and since architects have traditionally worked specifically to sell their designs, the law views their projects as "work-for-hire" rather than FINE art and writings which are not specifically work-for-hire, but are created purely at the originator's whim on speculation that them might sell someday, but since there were created this way, they are viewed as the author's property in terms of copyright even if they are later sold. True, a designer can issue a single bundle of plans for a 'mythical' building or even a whole book of such and THIS can be copyrighted, but any royalities that he might expect will have to come from sales of his documents by a publishing house which is responsible to collect royalities for him according to his contract with the publisher. While the copyright laws will theoretically prevent others from copying his designs/plans when published, there is nothing under current law to prevent someone building according to those plans, as long as no one else ALSO reprinted the documents and SOLD them without permission. There is a doctrine under American copyright law called "Fair Use" which would allow the purchaser of such a published design to make their own copies for their personal use and that of their employees or agents. Note that if you do not publically publish your works, it can be very difficult to establish that a particular document originated with you, although you are at liberty to copyright almost anything, but a copyright does not give the same protection under law that a patent does.

This entire matter of copyright is handled by the Copyright Office of the Library of Congress, and you can go to their web site to view some information about the subject: www.LOC.gov There are many books on this subject at libraries nationwide. Note that the copyright laws in other lands can be far different. Note also that I do not mention Patents in this, because that is much more difficult for an architect or designer to obtain, given that the burden of proof is on them to show that their building design constitutes something entirely new as a physical creation. Ideas cannot be patented, but if they can be reduced to paper, they can often be copyrighted. You must study the extensive laws for each form, because they are far different, which is why there are attorneys specializing in this are that are usually consulted with first. NEVER use those companies advertising in magazines or on TV to obtain a patent; they steal with impunity.

Finally, the practicality of either a patent or copyright must be considered. There are many thousands of patents that have never seen production (hence never a profit), or have been evaded by shrewd inventors or marketers. One of the most famous cases occurred just a few years ago when a woman thought of a simple wire-like form that made it easy to achieve a type of hairdoo, but even after the patent was granted, a marketing firm simply made the device out of plastic, sold millions of them, and then never paid the woman a cent. (Remember that patents are public documents available for review often long before the patenter ever gets to sell a single product, so the opportunity for theft is great). She went to court but found that the costs, including hiring expert patent examiners, would come into the millions of dollars long before a decision in the multi-year processs was ever delivered, and even if she prevailed, the market was by then saturated by the defendent's (the marketer's) product and there was little chance of sales to recoup her investments and costs. It was found that even a favorable decision would not refund to her all the millions that the court and lawyers would require before going to trial. Remember that any contract or law is only as good as your ability to enforce it, and if your opponent (the one who steals your designs) has deeper pockets than you, it is still quite possible that you may win the battle, but loose the war! Yes, a copyright certificate or Letters Patent may bring you great personal satisfaction as an acknowledgment of your ability, but do not depend upon either law as a sure fire way to protect your designs or to gain you profits.

I know of a large apartment building where the architect put a small bronze plaque in an out-of-the-way place on the front facade and thereby since 1930 has had his name before anyone who noticed the now green-patina declaration of his name. Perhaps such a thing is the only public recognition that one can hope for, until such time as a new owner wants to remodel and removes your plaque. It is possible in theory to have something called a Deed Restriction filed with the local jurisdiction's Register of Deeds to stipulate that such a plaque or insignia is to remain for the life of the building, but who is going to enforce such a document after you are gone? It is understandable that you want to get recompense for your work and due credit for your efforts, but if you expect posterity to want to remember you, you had better go into fine art, where one is expected to sign his work and the copyright is automatic.

 
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