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THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA 1957 E Street, N.W. Washington, D.C. 20006 • (202) 393-2040 • TELEX 279 354 AGC WSH JAMES W. SUPICA, President PAUL EMERICK, Senior Vice President KIRK FORDICE, Vice President HUBERT BEATTY, Executive Vice President


April 12, 1988

Mr. Ted P. Pappas, FAIA


The American Institute of Architects

1735 New York Avenue, N.W.

Washington, D.C. 20016

Dear Ted:

The Associated General Contractors of America supports an amendment to U.S. copyright law which delineates the copyright owner's right to prevent an unauthorized construction from copyrighted plans. Copyright owners may be developer/contractors as well as architects or building owners. The provision, therefore, potentially benefits all construction industry groups.

We shall convey this position to the appropriate decision makers in Washington.

Our understanding is that nothing in the statute would prevent an innocently infringing contractor from seeking indemnification from the offending party if this enhanced enforcement power causes loss. The protection that we seek is similar to that provided in A201 with regard to patent infringement.



Jim Supica


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3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of patent rights and shall hold the Owner and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or prod uct of a particular manufacturer or manufacturers is required by the Contract Documents However, if the Contractor has reason to believe that the required design, process or product is an infringement of a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the

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3.18.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Paragraph 3 18.

3.18.2 In claims against any person or entity indemnified under this Paragraph 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnifica tion obligation under this Paragraph 3.18 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts

3.18.3 The obligations of the Contractor under this Paragraph 3.18 shall not extend to the liability of the Architect, the Archi

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4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative.

4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor and Architect. Consent shall not be unreasonably withheld.

4.1.3 In case of termination of employment of the Architect, the Owner shall appoint an architect against whom the Contractor makes no reasonable objection and whose status under the Contract Documents shall be that of the former architect. 4.1.4 Disputes arising under Subparagraphs 4.1.2 and 4.1.3 shall be subject to arbitration.



4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents, and will be the Owner's representative (1) during construction, (2) until final payment is due and (3) with the Owner's concurrence, from time to time during the correction period described in Paragraph 12.2. The Architect will advise and consult with the Owner. The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise modified by written instrument in accordance with other provisions of the Contract.

4.2.2 The Architect will visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the completed Work and to determine in general if the Work is being performed in a manner indicating that the Work, when completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check quality or quantity of the Work On the basis of onsite observations as an architect, the Architect will keep the Owner informed of progress of the Work, and will endeavor to guard the Owner against defects and deficiencies in the Work 4.2.3 The Architect will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility as provided in Paragraph 3.3. The Architect will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Con




COLUMBIA, S. C. 29208

March 17, 1988

B. Cheryl Terio, Esq.

Director, Government Affairs

The American Institute of Architects

1735 New York Avenue, N.W.

Washington, D.C. 20006

Re: AIA's Proposed Amendment to Section 113 of the Copyright Act

Dear Ms. Terio:

I am writing in response to your request for my comments on an amendment to section 113 of the Copyright Act of 1976 which your organization has proposed to Representative Kastenmeier, Chairman of the House Subcommittee on Courts, Civil Liberties and the Administration of Justice. The amendment, which would add a new subsection, states:

The exclusive right of the owner of a copyright
in an architectural drawing, plan, print,
sketch, diagram or model relating to a building
or structure under $ 106(1) and (2) includes
the right to prevent an unauthorized construction
of the building or structure depicted.

This amendment will accomplish several things. First, it is statutory recognition that architectural plans, drawings and the like are copyrightable. Even though the 1976 Act's legislative history clearly establishes that plans are copyrightable, H.Rep. at 55, this addition is important because the statute itself does not mention architectural works. I think it would be wise to eliminate all doubts once and for all and bring our law into compliance with the Berne Convention.

Second, and in my opinion most important, the suggested addition to section 113 recognizes that an architect/copyright owner has protection against the unauthorized use of his copyrighted plans for the construction of a building. As our copyright law stands now, the only right in the copyright bundle that an architect can be sure of is the right to control reproduction of plans and drawings in the form of another set of plans and drawings. Some courts and commentators have suggested that an architect's copyright on his plans does not encompass a right to control their use. See, e.g., Imperial Homes v. Lamont, 458 F.2d 895 (5th Cir. 1972); N. Boorstyn, Copyright Law $ 2.25, at 77 (1981) ("It was generally accepted under prior case law that the unauthorized

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Cheryl Terio, Esq.
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construction of a building based on copyrighted plans did not constitute copyright infringement of the plans"). In my opinion, as explained below and in my article at 37 S.C. L. Rev. 393 (1986), protection only against reproduction of plans in the form of another set of plans is insufficient. Architects also need and should have protection against unauthorized use of their plans to construct a building. Explicit recognition is necessary and the AIA's proposed addition to section 113 of the Act affords such protection.

Since plans and blueprints are meant to be used to construct the building they portray, architects are necessarily concerned about unauthorized use of those plans as well as with the copying of those plans. 1 M. Nimmer, Nimmer of Copyright, § 2.08[D][2]. Architectural plans, blueprints and models are analogous to an artist's sketches for a full-sized canvas or the drawings and scale models a sculptor uses to execute a large statue. Their rights are violated when another person uses those drawings and models to create substantially similar paintings or statues, see, e.g., Mazer v. Stein, 347 U.S. 201 (1954)(infringement of statuettes used as lamp bases); Ideal Toy v. Kenner, 443 F. Supp. 291 (S.D.N.Y. 1977) (dolls based on copyrighted cartoon characters held to infringe), and, by analogy, it seems that an architect's rights in his blueprints would be infringed by their unauthorized use to construct a building. Use of the plans to construct the building is simply copying or reproducing the plans in a different medium. If the architect has authorized that use of his protected work then there is no infringement. On the other hand, if the use of plans to construct is unauthorized then the user should be liable for infringement. "The fact that a work in one medium has been copied in another medium does not render it any less a 'copy.'" 2 M. Nimmer, S 8.01[B]. Furthermore, the unauthorized use of plans may be more damaging to an architect's economic interests than the unauthorized reproduction of the plans themselves. Id. S 2.08[D]; Artistic Advance and the Legal Protection of Architectural Works, 70 Cornell L. Rev. 81, 95 (1984). If the unauthorized building or other use of copyrighted plans occurs, then a significant part of the market for the plans is destroyed and the architect's copyright is of little value.

Despite the obvious importance of the right to control use of copyrighted plans and the fact that this right is analogous to rights enjoyed by the creators of other categories of copyrighted works, some courts and commentators have said that the copyright on plans and blueprints does not include a right to control use. See 1 M. Nimmer, S 2.08[D] (discussing an architect's rights when a contractor obtains a set of plans and uses them without permission and without making a two-dimensional reproduction); Schuchart & Assocs. v. Solo Serve Corp., 540 F.Supp. 928, 941 (W.D. Tex. 1982). One of the 34 studies prepared in the late 1950s and early 1960s by the Copyright Office as groundwork for a report on the

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revision of the 1909 Act states that it is highly doubtful that copyright in plans protects against unauthorized use. Study No. 27 on the Copyright Law Revision, Copyright in Architectural Works 69 (1961) (reprinted in 1 Studies on Copyright (1963)). Thus, there is considerable uncertainty today whether the unauthorized use of plans to construct a building constitutes infringement. See Cornell Note, supra at 84-85 (cases hold that copyright in plans does not grant right to build from plans).

Many of the cases which have held that the copyright on plans does not protect against unauthorized use to build rely on the venerable case of Baker v. Selden, 101 U.S. 99 (1879). Baker is often cited for the settled principle, now codified at section 102(b), that copyright does not extend to ideas, systems, facts or concepts. However, the Court's rambling opinion has also been cited for the proposition that there is a distinction between copying for explanation and copying for use; the former infringes, the latter does not. That interpretation extends Baker too far. The distinction between copying for explanation and copying for use is an awkward one, without much substance, and it has not been reviewed by the Supreme Court for over a century. See Apple Computer v. Franklin Computer, 714 F.2d 1240, 1251-53 (3d Cir. 1983). In Baker the Supreme Court was responding to Selden's contention that his copyright gave him an exclusive right to use the bookkeeping system and forms described in his book. Since the Court was concerned that the copyright monopoly might be construed to grant Selden an exclusive right to the use of that system, it held that Selden's copyright could not protect the art described in his work. Therefore, according to the late Professor Nimmer, the rule established by Baker should simply mean that copyright does not extend to the ideas, concepts and systems described in a protected work authorship. 1 M. Nimmer, SS 2.18[C] and [D]. The Supreme Court has limited Baker's holding in that way and so has the Court of Appeals for the Third Circuit. See Mazer v. Stein, 347 U.S. 201, 217 (1954); Apple Computer v. Franklin Computer, 714 F.2d 1240, 1251-53 (3d Cir. 1983).

Accordingly, the Baker rule, as applied to architectural works, means that an architect has no exclusive rights to the design ideas, concepts and methods of construction disclosed in his copyrighted plans. This basic limitation on copyright does not, however, restrict an architect's exclusive right to control reproduction of his protected plans, and, as explained above, those plans are reproduced when they are copied into another set of plans and when they are used to construct the building they portray. The Copyright Act proscribes reproduction without qualification; it does not immunize use. Apple Computer, 714 F.2d at 1251-53; 1 M. Nimmer S 2.18[C][2]. Thus, the proposed amendment's recognition of the architect's right to control use of plans will not offend the principle announced over a century ago in Baker v. Selden that copyright does not extend to ideas, systems and

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