How can an architect prove that his work is protected by copyright?

Architects have come under fire during tax audits in recent months. Like many other authors, architects make use of the favorable tax regime in personal income tax that can be applied to the so-called cession (assignment/transfer) or concession (license) of copyrights. The tax administration consistently disputes that architect's plans are protected by copyright (due to a lack of originality) and that architects could not apply this tax regime, resulting in an coresponding tax assesment. In this blog, we give architects advise on how they can demonstrate the copyrighted nature of their creations.

Architectural works and copyright law

Article XI.165 §1 Code of Economic Law grants protection to the author of a work of literature or art.

Article 2.1 of the Bern Convention[1] explicitly mentions drawings and sketches related to architecture, as a work of literature and art:

The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, sketches and three-dimensional works relating to geography, topography, architecture or science.

The protection covers both the architect's plans, drawings, scale models, etc. and the buildings realized according to these plans[2]. Incidentally, an architect may also claim protection on a site plan or diagram of the site plan of a home[3] . An architect is protected in his capacity as creator of lines, forms and volumes, and is entitled to copyright protection as soon as he incorporates elements and/or materials in an original form, which give the work a personal character[4].

Copyright , after all, does not protect just any architect's drawing, sketch or plan, but only those that are original.

Originality

In order for an architect's drawing, sketch or plan to be considered original, it is both necessary and sufficient that they be an intellectual creation of the architect that reflect the architect's personality and are expressed through the architect's free and creative choices in their creation[5].

It is important to note, however, that if the production of the drawing, sketch or plan is subject to technical considerations, rules or other constraints that do not leave room for creative freedom, it cannot be considered to have the originality required to be a work of literature or art and therefore enjoy copyright protection[6].

It follows that a drawing, sketch or plan that meets the condition of originality may be eligible for copyright protection, even if its realization is determined by technical considerations, provided that such provision has not prevented the architect from expressing his personality in the drawing, sketch or plan by expressing free and creative choices[7].

The architect must thus demonstrate that he was able to make free and creative choices when producing a drawing, sketch or plan.

Free and creative choices

When the architect has to take into account determining factors such as (i) the client's assignment (including the site conditions), (ii) the client's preference regarding style and materials as well as his budget, and (iii) the technical requirements of the structure including stability, sturdiness and living comfort, he has to indicate factual elements showing that despite these constraints there was still room for him to make a free and creative input.

For example, the Brussels Court of Appeals ruled[8]:

The originality of X's sketches in terms of copyright is not in dispute. By opting for a circular building, with an atrium at its heart, partially occupied at the top by a series of superimposed oval meeting rooms arranged around a central axis and supported by long, narrow columns, X expresses his creative ability in an original way by making free and creative choices, thus making his own mark.

These forms are not dictated solely by external, functional or urban planning constraints.

The round shape of a building is well known, as is the principle of the atrium, widely used in office buildings, or the occupation of this space by oval volumes. These elements, considered separately, are all or mostly already known or commonplace. The originality of X's designs lies in the combination of these elements.

Liege Court of Appeal[9] described it as follows in the context of a renovation project:

In the field of architecture, originality may derive in particular from the details of the work, even if the whole in which they are included is not new, and more specifically from the way in which the architect has combined architectural elements found in nature or belonging to the public domain, from the choice of the use of specific materials, from original furnishings made in the context of renovation work on an already existing space.

In this case, the architectural ensemble of Le Balloir reflects the personality of its author. It unites all the characteristic elements of the creative identity of the architect's work as described in the various articles and works on his achievements: simplicity of forms and materials, austerity of lines and colors, use of raw materials, where these choices were not dictated solely by thrift or the constraints of the specifications, but by the desire to create a coherent whole and build bridges between ancient and modern architecture and the plastic arts.

Finally, reference may also be made to a judgment of the Court of Appeal of Ghent[10] :

The Court considers that the house "Palladio" designed by Zoltan Janko is original and therefore entitled to copyright protection. The building demonstrates an intellectual effort and bears the stamp of the personality of its designer.

The original character of the building stems, among other things, from its stepped structure, in which two volumes of different sizes were stacked on top of each other, so that at the front a spacious and striking terrace is created above the entrance to the house.

The front facade of the ground floor of the house is further symmetrically constructed, with a garage on one side and a large window on the other. The entrance to the house is located in the middle of these two sides and jumps in to the rear, creating a sort of portico.

The front facade of the house is wider than the house behind it itself. None of these form elements is determined by functional or technical requirements. The combination of all these elements gives the house an original character (see photos).

Evidence

When drawing up a design plan, the architect can make creative choices resulting from bringing together different materials and components and arranging them in a new and peculiar way that allows the architect to put his personal stamp on the structure.

In order to be prepared in case of a later dispute about the originality of his drawings, sketches and plans, it is appropriate for the architect to make a list of all the formal elements in which he was able to show his creativity.

It is important here that on the one hand he touches on the client's wishes and the technical requirements, but at the same time shows how he was nevertheless able to make his own creative choices that allowed him to place his personality on the structure.

Here it is advisable that he clarifies that he has not opted for a standard solution and has not started from a type plan (à la turnkey) in which his own input is limited to e.g. the adjustment of the number of windows or the positioning of the garage space. Ideally, he demonstrates that he started tabula rasa the design process and gradually added his own touches to the plan, allowing him to express his personality.

In case of doubts or ambiguities, take contact with our attorneys specializing in copyright.

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[1] As ratified by the Belgian legislature by law of March 25, 1999 (O.J. November 10, 1999).

[2] Ghent May 17, 2010, TBO 2011, vol. 3, 124, note T. Laurens; Antwerp Sept. 25, 2000, TBBR 2001, 618; Brussels June 21, 1988, JLMB 1989, 17; Cass. June 18, 2020, C.19.0017.N

[3] Brussels (2k) November 6, 2015, 2011/AR/940, Darts-IP

[4] Ghent May 13, 2009, TBO 2011, vol. 3, 121, note T. Laurens; Liege Nov. 10, 1954, JT 1955, 385

[5] H.v.J. June 11, 2020, C-833/18, para. 22.

[6] H.v.J. June 11, 2020, C-833/18, para. 23.

[7] H.v.J. June 11, 2020, C-833/18, para. 26.

[8] Brussels (9k) Sept. 20, 2018, Darts-IP (translated citation)

[9] Rb. Liege April 24, 2007, JLMB 2007, vol. 42, 1793, affirmed by Liege Feb. 27, 2009, AM 2009, vol. 6, 629 (translated citation).

[10] Ghent May 17, 2010, IRDI 2012, vol. 2, 204.