Isabel Davies and Jenny Joint With architects competing to create innovative and distinctive designs, it is important for owners to avoid their buildings being copied, or worse yet, sold in souvenir shops
When you’ve spent a billion pounds creating the sexiest skyscraper Britain has ever seen, how can you stop others from copying its design or making money from its success?
The main threat is that other architects (or even the same one) and developers will copy the design of the building. However, there are other threats, depending on the popularity of the building. These include: people selling models, postcards and drawings of the building, and others suggesting that they are in someway associated with it. For example, you can’t move in Paris without being offered a mini-Eiffel tower, or through New York without encountering one of the numerous Empire State tour companies.
If architects and developers are to avoid this issue in the future, there are various intellectual property laws they must make themselves aware of.
First, copyright is the intellectual property right which most people associate with protecting the designs of buildings. Indeed, for a period of 70 years after the original creator’s death, copyright subsists in the design drawings for the building, the building itself and any models of it.
As a result, in the absence of any specific exemptions from liability (of which there are many for buildings, see below), the existence of copyright will provide the copyright owner with the right to prevent third parties from copying the design drawings, the building and any model of the building.
However, specific exemptions in the legislation mean that, with respect to buildings and publicly displayed models of buildings, copyright cannot be used to prevent someone from making a graphic work (e.g. a painting), a photograph, or a film which features the building. In addition, copyright cannot be used to prevent any person from providing or selling any of those things to the public. As a result, it would not be an infringement of copyright to take photographs of, say, the planned Shard building in London and make and sell postcards using the photographs, nor would it be an infringement of copyright to feature the building in a film or computer game.
The existence of copyright will provide the copyright owner with the right to prevent third parties from copying the design
Second, moral rights are a strange and relatively new right. They are related to copyright law and give the architect of a building certain rights, which are most significantly: the right not to have the building or design subject to derogatory treatment; and, if asserted by the architect, the right to be identified as the architect, for example where photographs of the buildings are issued to the public or in advertisements for the building.
Third, registered trademarks help owners of iconic buildings restrict the name of the building, associated logos, and even the outline or silhouette of the building. For example, trade marks are registered for the Gherkin (30 St Mary’s Axe), Tower 42 and the Barbican in London. Indeed, trademarks are now seen as such an important method of protecting iconic buildings that developers are advised to register trademarks before the name of the building and its design are made public.
Finally, unregistered trademark rights help protect any indication or sign used by a building owner as badge of trade. For example, the name of the building or a logo featuring its design, may be protected as an unregistered trademark.
To obtain protection, the building owner would need to establish the reputation of the trademark so that people associate goods and services provided using it as coming from the building owner.
In conclusion, it is possible to protect bricks and mortar by the use of intellectual property rights and, as the design of buildings becomes more innovative and distinctive, it is likely that this is something that will become more relevant to all building owners, and not just those of iconic buildings, who wish to exploit or protect a building’s design.
Isabel Davies is a partner in the intellectual property division at CMS Cameron McKenna and Jenny Joint is a solicitor in real estate