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Getting Permission
to Use Archival
Materials Related to Architectural Works
Beth
Dodd, Architecture Library
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An original design of a building
embodied in any tangible medium of expression, including a building, architectural
plans or drawings, is subject to copyright protection as an "architectural
work" under the Copyright Act., 17 U.S.C. § 102, as amended on December
1, 1990.—from the Library of Congress, Copyright Office Circular 41, Copyright
Claims in Architectural Works.
Keep these principles in mind as
you pursue permission to use archival materials related to architectural works:
- Documents as well as the building
can be copyrighted.
- The design may also be patented.
- Even if all of the copyrights
of a firm or architect are transferred in writing
to an archive, the archive should not assume that it owns copyright in all
the transferred artifacts, because:
- A particular project may
have been done as a work-for-hire or as part of a consortial effort,
either of which arrangements could vest copyright ownership in another
entity besides the firm or the architect that did the work.
Always determine copyright
ownership on a project-by-project basis. Here’s how to get
started:
- Determine the authors of the
project.
- Look for any contracts in the
project collection. Traditionally (and as aided by Standard American
Institute of Architects documents B141 and B161, located in the Handbook
of Professional Practice [UT Architecture and Planning Library Reference
NA1996 A726 1994]), owner-architect agreements define architectural drawings
and specifications as "instruments of service." This means that
the architect usually retains ownership of copyright and sells only his
or her services.
- Copyright may have been transferred
to the architect’s or firm’s client if the work was commissioned
as a work-for-hire. This would have to be set out in a contract, signed
by the parties.
- If the architect or firm retained
copyright and transferred it to the archive by a written agreement,
the archive may grant permission.
- If the architect or firm did
not transfer copyright to the archive, permission must be sought from either
the architect or firm, or the client if the copyright was transferred to
him or her.
- In the case of a jointly owned
work, discuss with at least one owner whether the owners have an agreement
to require approval from all the owners for any use of the work. Generally,
joint owners can grant non-exclusive rights to others without the agreement
of their co-owers; however, in the absence of agreement from all joint owners,
no owner can assign or exclusively license the copyright in the jointly
owned work.
- Consider whether the work might
be in the public domain: when was
the work created? Has it ever been published? Is the author deceased? A
work is considered published when underlying plans, drawings or other copies
of the building designed are distributed or made available to the general
public by sale or other transfer of ownership, or by rental, lease, or lending.
Construction of a building does not itself constitute publication for purposes
of registration, unless multiple copies are constructed. Architectural works
created on or after December 1, 1990, and any architectural works that were
unconstructed and embodied in unpublished plans or drawings on that date
are eligible for protection. Copyright Claims
in Architectural Works. Circular 41. United States Copyright Office,
The Library of Congress, August 1993.
- If the project is still protected,
and the authors are ceased or deceased, contact heirs and successor firms.
- Are there successor firms? Were
the rights properly transferred? Did the firm die with the architect? Use
the following to aid your search: administrative histories found in finding
aids, gift files of the collection, and historical research. If you can
identify a successor firm, can they provide documentation verifying the
transfer of copyright to the firm?
- Are there any heirs? The Copyright
Act designates the spouse and children as the class of persons who inherit
copyrights when the owner dies without a will. If there is a will, consult
its provisions to see to when the copyrights may have been transferred.
Keep in mind that there may be a strong possibility that the rights to the
material were retained by the architectural firm or business rather than
passed on to heirs. Use the following to aid your research: archival finding
aids and gift files, historical research including obituary searches and
genealogical sources.
- Confer with other archives.
To locate holdings in other collections, refer to sources such as: ArchivesUSA,
DAMRUS (Directory of Archival Repositories), NIDS (National Inventory of
Documentary Sources), NUCMC (National Union Catalog for Manuscripts), RLIN
and OCLC. For help in locating or using these sources, contact a librarian.
If you have access to a University of Texas at Austin General Libraries
terminal, there are links to each of these sources from http://www.lib.utexas.edu/
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