# Copyright in Architectural Works: What You Need to Know



## mark handler (Aug 12, 2010)

Copyright in Architectural Works: What You Need to Know

As an architect, it's important for you to understand intellectual property

and which aspects of copyright laws relate to your work. Download this

free cheat sheet now to get some quick facts on copyrighting architectural

works, including:

"Property Boundaries" of Copyright

Educational Challenges

Liability Issues

Owner-Architect Agreements

And more!

To download this cheat sheet, click here

http://www.emediausa.com/l/?72298.639965.SLOMWOKY.0.18805


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## Paul Sweet (Aug 15, 2010)

Good info, Mark.  Thanks for posting it.


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## mark handler (Aug 15, 2010)

No Problem


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## RickAstoria (Aug 16, 2010)

Important note: This copyright is not limited to licensed architects and are also applicable to building designers. There was a committee review on this by the House/Senate and they concluded that this applies not just to licensed architects. The federal government does not delineate building designers from licensed architects. In the eyes of the Federal government, the term architect applies to both unlicensed designers and licensed architects. The title game is a state deal but as far as the copyright goes, it applies to anyone. architectural work in there eyes applies to the work of both licensed architects and building designers. They are not getting involved in the word game. They use it in the same manner as it was before states started this title/word game. In short, the federal government can care less. It is Architectural Work in their eyes whether it was designed by an "architect" or a unlicensed person.

I remember reading that but can't recall where the link was to it.


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## RickAstoria (Aug 16, 2010)

Important note: This copyright is not limited to licensed architects and are also applicable to building designers. There was a committee review on this by the House/Senate and they concluded that this applies not just to licensed architects. The federal government does not delineate building designers from licensed architects. In the eyes of the Federal government, the term architect applies to both unlicensed designers and licensed architects. The title game is a state deal but as far as the copyright goes, it applies to anyone. architectural work in there eyes applies to the work of both licensed architects and building designers. They are not getting involved in the word game. They use it in the same manner as it was before states started this title/word game. In short, the federal government can care less. It is Architectural Work in their eyes whether it was designed by an "architect" or a unlicensed person.

I remember reading that but can't recall where the link was to it.


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## RickAstoria (Aug 16, 2010)

http://www.aepronet.org/pn/vol5-no2.html

Closest we'll get without ordering prints of this report. The 101st Congressional Report H.R. 101.735 (The report in question and noted in the link is apparently not available for online view.)

This will be clear enough.


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## Yankee (Aug 16, 2010)

What is interesting is thinking of a (any) design element that appears on an architectural drawing and determining if it is ever really a "new" element, or if it itself was developed from some long history of humanity "stealing with their eyes". Some cases will be clear as to the proximity of the defendant to the copied work, and other cases will be more difficult in the respect. I don't like the sentance/notion that "if it looks pretty much the same it must have been copied".


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## MarkRandall (Aug 16, 2010)

In 25 years of practicing Architecture, I have not once included a copyright on the drawings. Most who do include one, do not follow through and actually pay for the copyright registration. It's one of those issues I just don't care enough about it to actually copyright something. It seems the headache of it all outweighs any benefit.


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## RickAstoria (Aug 16, 2010)

MarkRandall said:
			
		

> In 25 years of practicing Architecture, I have not once included a copyright on the drawings. Most who do include one, do not follow through and actually pay for the copyright registration. It's one of those issues I just don't care enough about it to actually copyright something. It seems the headache of it all outweighs any benefit.


You automatically are afforded a copyright. Putting a #### © firstname lastname (or business name). However, if there was a case, you will not get as big amount awarded to you. It you are dealing with a significant piece of architecture for a BIG client then you will want to protect your rights. Filing will provide you more. I simply put the copyright notice on the drawing to provide some level of protection. Whether I go as far as filing with the US Copyright office to register the work.... that is a cost/benefit analysis. Is it worth fighting for it. Indemnification to protect myself under such situations is CYA.


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## mark handler (Aug 23, 2010)

Architect Less Than Flattered

Lawsuits contend that ex-employee used pilfered plans for real estate mogul's mansion. The case is expected to test copyright law.

September 18, 2003|Martha Groves, Los Angeles Times Staff Writer

After three decades in real estate, mogul Fred C. Sands is finally building what he envisions as a one-of-a-kind dream mansion in Bel-Air.

It turns out the house might not be so one-of-a-kind after all.

In two lawsuits -- one filed in state court, the other in federal court this month -- architect William Hablinski alleges that a former employee plotted with a family of builder-developers to pilfer plans for the Sands house and use them to construct a remarkably similar Tuscan-style villa in Beverly Hills.

The suits brand it the Copycat House.

But for an accidental discovery, Hablinski -- who has designed custom manses for Warren Beatty and Annette Bening, Arnold Schwarzenegger and Maria Shriver -- might never have learned of the second house.

According to the complaints and interviews, two Hablinski employees -- Dave Hogan and Richard Giesbret -- in April happened to drive by a construction site on Marilyn Drive in Beverly Hills. Hogan commented on the fine detailing on a pediment piece over a doorway. The men decided to take a closer look.

"I looked at the whole facade and said, 'This is the Fred Sands house,' " Hogan said.

Stunned, the men ventured inside and found what they considered striking similarities to the Sands residence in the floor plan and within individual rooms, including the dining room, the media room, the library and the gym.

During their tour, a worker laid drawings for the house on the floor. The size of the sheets appeared to be identical to that of the plans for the Sands residence, which is now nearing completion seven miles to the west.

There were variations, to be sure, because the Beverly Hills lot was much smaller than Sands'. The garage wing, for example, was different, but Hogan said he realized later that it was just like a wing designed for a previous Hablinski project.

Then Hogan noticed that a logo and Web site for MSH Design appeared in the same place where the William Hablinski Architecture logo was positioned on the original Hablinski drawings. MSH Design is the firm of Mehran Shahverdi, who once worked for Hablinski.

The state suit, filed in June, names Shahverdi as the defendant and alleges, among other complaints, that he stole trade secrets. The federal suit, filed Sept. 5, names the builders and owners of the Beverly Hills property, along with two companies they own. It alleges copyright and trademark infringement, unfair competition and other complaints.

Both suits seek unspecified damages.

The federal lawsuit, filed in U.S. District Court in Santa Ana, aims to test the bounds of the Architectural Works Copyright Protection Act of 1990, said Peter J. Bezek, Hablinski's attorney.

That law, designed to help bring the United States into compliance with the Bern Convention, an international copyright agreement, extended copyright protection to buildings. Previously, U.S. copyright code had protected architectural plans, but not buildings.

If either case goes to trial, jurors will be asked to compare not only the general appearances of the two houses, but also a variety of architectural features, from entablatures and pediments to fascia and architraves.

Unlike art, literature and, particularly, music -- which has spawned various lawsuits over illegal copying -- architecture is not about pure design, and that could complicate Hablinski's effort to win protection under the 1990 law, legal experts and architects said.

The lawsuits thus raise intriguing questions about what could be called architectural plagiarism.

"Architecture has a large functional component," said John Tehranian, a professor of intellectual property law and entertainment law at the University of Utah. "As a result, the courts are going to be very careful in terms of how far they grant architectural protection. You don't want someone to own the copyright on the door or the window. This would severely hamper the work of builders."

The issue is further muddied by the fact that architecture "is a profession that's based on borrowing," said Aleks Istanbullu, a Santa Monica architect who designs contemporary houses.

"Everybody builds on top of what others have built," Istanbullu said. "The copycat house is, at worse, the replica of a replica of a replica. Which generation of architects is it that was actually the copycat? They all were. It is a style that is being regurgitated over and over again, and Bill Hablinski has got the most recent claim to it.

"Under most circumstances, he would not have a leg to stand on," Istanbullu added. However, he acknowledged, if an employee stole plans and if that theft were sanctioned by others, that "is outrageous."

Shahverdi, through his attorney, denied all allegations in the state suit. An attorney for the individuals named in the federal lawsuit said he had not yet seen the suit and could not comment specifically on it, but he, too, denied any wrongdoing on the part of his clients.

Hablinski -- who said he prides himself on his expertise in historical architecture and his firm's attention to detail, with features drawn to one-sixteenth of an inch -- said he feels the case is tailor-made for setting an example for anyone who would filch an architect's ideas.

"It's very dismaying to have spent the better part of a year and a half developing a unique design for an important client and then go down the street one day and see this thing coming up like a mushroom," he said.

Two days after Hogan and Giesbret discovered the second house, Giesbret reviewed plans for the mansion at the Beverly Hills building department. One page contained the code name for the Sands residence, Unity Family Trust. Throughout the documents, the suits allege, statements appeared that mimicked those on the Hablinski plans.

Giesbret secured a copy of the owner-builder building permit, which listed Parviz Elihu as the applicant and Amir Construction, which had formerly employed Shahverdi, as the general contractor. Listed as owners of the house were Joseph Elihu and his wife, Hayadeh. Joseph and Parviz, who goes by Perry, are brothers.

According to the complaints, Joseph Elihu is president of EuroConcepts Inc., another company owned by him and his brothers. The suits say EuroConcepts had won the bidding to supply high-end kitchen and bathroom fixtures for the Sands house.

As a result, the Elihus (including two more brothers, Daniel and Albert) had access to the Sands residence and the architectural drawings, the suits say. The Elihu brothers and Hayadeh Elihu are named as defendants in the federal complaint, as are EuroConcepts and Amir Construction.

Perry and Daniel Elihu, interviewed at the Marilyn Drive site, said they were dismayed to hear of the dispute.

"We have not seen the [Hablinski] plans," Perry Elihu said. "We have no connection in any shape or form with that project. We commissioned [shahverdi] to do a house and he did it."

Daniel Elihu added that they were upset to learn that someone once had copied a building they constructed on Rexford Drive in Beverly Hills.

"We pride ourselves on creating buildings that are as unique as possible," he said. "We did a project on Rexford and six months after a building went up on Rodeo that is exactly the same thing."

Shahverdi had started work at Hablinski's firm as a "job captain" in May 2000. His responsibilities included design development, research, manual drafting of plans and occasional travel to job sites. Among the projects to which he was assigned was the Sands residence.

Michael E. Fox, Shahverdi's attorney, said he has filed a petition with the state court, seeking to force Hablinski's firm to cease its lawsuit and to submit all claims against his client to private arbitration. A hearing on that request is scheduled for Monday. Nathan B. Hoffman, an attorney for the Elihus, said his clients, "to the best of their knowledge, never had anything that wasn't the product of engineers and designers whose work they had paid for."

Under the 1990 architectural copyright law, punishment for infringement is not limited to an offending architect. Even if builders were unaware that plans had been pirated, they could be subject to damages.

Sands is not a party to the suits. He declined to allow photographs of his 20,000-square-foot house in a leafy, gated community. But in an interview he acknowledged that he and his wife, Carla, were quite unsettled when Hablinski told them of the situation.

"My wife and I didn't sleep for three nights," Sands said. A prominent broker has put the value of his house at $20 million.

"After spending $500,000 for the architecture, for somebody to come along and knock off those plans is not comprehensible," Sands said. "I could see using this as your point of inspiration. But to have my wife's bathroom be the same and the molding in the dining room be the same and to have somebody put those renderings on their Web site is unbelievable.

"It's 90% my house," said Sands, who in 2000 sold his real estate firm to Coldwell Banker. "This kind of house, this caliber, is supposed to be one of a kind. It's like paying a couturier $25,000 for a dress. You don't expect to go to an event and see the same dress."

http://articles.latimes.com/2003/sep/18/local/me-copycat18


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## MarkRandall (Aug 23, 2010)

RickAstoria said:
			
		

> You automatically are afforded a copyright. Putting a #### © firstname lastname (or business name).


Rick,

I've looked into copyright requirements on several occasions and it's my non-lawyer opinion that simply putting a copyright notice on the documents is next to meaningless, but I could be wrong. If you or anyone else has a reputable web site link that explains your position, I'd like to look into it further. The link in this thread mentions timeliness of applying as being a factor in the amount of rewards. I just can't fathom that if someone never registers their copyrights until such a time that you feel your copyright has been taken by someone else that it has any merit.


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## peach (Aug 29, 2010)

Once a set of plans gets entered into the building department, it doesn't matter if it's copyrighted or not.. anyone can request a copy under FOIA.


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## mark handler (Aug 29, 2010)

peach said:
			
		

> Once a set of plans gets entered into the building department, it doesn't matter if it's copyrighted or not.. anyone can request a copy under FOIA.


The federal FOIA does not provide a right of access to records held by Congress, the courts, state or local government agencies, or by private businesses or individuals.

The records are open to public inspection and searching *Not for copying.*

You might want to talk with a lawyer

I love the law don't you?


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## peach (Aug 29, 2010)

so you say, Mark... that's not how all jurisdictions enforce it.


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## mark handler (Aug 29, 2010)

Not all jurisdictions enforce the code the same, it's all based on education; And Lawsuits.

We need to get people to read the Law.


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## mark handler (Aug 29, 2010)

Some feel the I-codes are, becouse codified,  free to be copied.


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## peach (Aug 29, 2010)

SBCCI lost a copy right suit, mark.. just on that basis.. I don't recall if/when the Supremes ruled on it.


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## mark handler (Aug 29, 2010)

5th Circuits Affirms Judgment of Internet Copyright Infringement

(February 5, 2001) The U.S. Court of Appeals, Fifth Circuit, issued its opinion in Veeck v. SBCCI upholding the District Court's judgment of copyright infringement. The defendant published in his web site copies of copyrighted model building codes that had been incorporated into law by reference. The Appeals Court, following both precedent and policy arguments, held that a copyrighted work does not lose it protection when adopted into law. One judge dissented.

Education

I love the law don't you?


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## conarb (Aug 29, 2010)

The matter was appealed and the Supreme Court unbelievably denied certiorari, as it stands Veek applies only in the 5th Circuit (Texas, Oklahoma, and Louisiana), here is a good explanation. The Supremes almost always grant writs of certiorari when there is a major conflict within the circuits.


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## mark handler (Aug 29, 2010)

Thank you Dick


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## Mark K (Aug 29, 2010)

I suggest that the reasons that the ICC and state codes are availible on the internet (http://publicecodes.citation.com/) is because of a conern that regulations need to be freely availible to the public.  This approach makes the code provisions availible but makes them so difficult to use that most people will still buy the hard copies of the code.  In addition this web site is not widely publicized thus reducing the likely hood that people will use it.

The requirement for public access to regulations is in conflict with the idea that the copyright holder can controll access to his publications.  I believe that in order to have jurisdictions adopt ICC codes thus allowing ICC to sell more books that they agreed to this compromise.


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## Frank (Aug 30, 2010)

The Virginia Freedom of Information Act is very clear that construction documents submitted for building permits are public reacords available for copying with limited exceptions.

§ 2.2-3700. Short title; policy.

A. This chapter may be cited as "The Virginia Freedom of Information Act."

B. By enacting this chapter, the General Assembly ensures the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted. The affairs of government are not intended to be conducted in an atmosphere of secrecy since at all times the public is to be the beneficiary of any action taken at any level of government. Unless a public body or its officers or employees specifically elect to exercise an exemption provided by this chapter or any other statute, every meeting shall be open to the public and all public records shall be available for inspection *and copying *upon request. All public records and meetings shall be presumed open, unless an exemption is properly invoked.

...

"Public records" means all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, *or in the possession of* a public body or its officers, employees or agents in the transaction of public business.

...

  prev | next

§ 2.2-3704. Public records to be open to inspection; procedure for requesting records and responding to request; charges; transfer of records for storage, etc.

A. Except as otherwise specifically provided by law, all public records shall be open to inspection *and copying *by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth. The custodian may require the requester to provide his name and legal address. The custodian of such records shall take all necessary precautions for their preservation and safekeeping.

...

  prev | next

§ 2.2-3705.2. Exclusions to application of chapter; records relating to public safety.

The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:

...

2. Those portions of engineering and construction drawings and plans submitted for the sole purpose of complying with the Building Code in obtaining a building permit that would identify specific trade secrets or other information, the disclosure of which would be harmful to the competitive position of the owner or lessee. However, such information shall be exempt only until the building is completed. Information relating to the safety or environmental soundness of any building shall not be exempt from disclosure.

Those portions of engineering and construction drawings and plans that reveal critical structural components, security equipment and systems, ventilation systems, fire protection equipment, mandatory building emergency equipment or systems, elevators, electrical systems, telecommunications equipment and systems, and other utility equipment and systems submitted for the purpose of complying with the Uniform Statewide Building Code (§ 36-97 et seq.) or the Statewide Fire Prevention Code (§ 27-94 et seq.), the disclosure of which would jeopardize the safety or security of any public or private commercial office, multifamily residential or retail building or its occupants in the event of terrorism or other threat to public safety, to the extent that the owner or lessee of such property, equipment or system in writing (i) invokes the protections of this paragraph; (ii) identifies the drawings, plans, or other materials to be protected; and (iii) states the reasons why protection is necessary.

Nothing in this subdivision shall prevent the disclosure of information relating to any building in connection with an inquiry into the performance of that building after it has been subjected to fire, explosion, natural disaster or other catastrophic event.


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## RickAstoria (Sep 3, 2010)

MarkRandall said:
			
		

> Rick,I've looked into copyright requirements on several occasions and it's my non-lawyer opinion that simply putting a copyright notice on the documents is next to meaningless, but I could be wrong. If you or anyone else has a reputable web site link that explains your position, I'd like to look into it further. The link in this thread mentions timeliness of applying as being a factor in the amount of rewards. I just can't fathom that if someone never registers their copyrights until such a time that you feel your copyright has been taken by someone else that it has any merit.


U.S. Copyright office. Federal Law. It says EXACTLY. All copyrighted items are automatically copyrighted at the creation of the work. A date and a copyright notice and initial publication strengthens your defense. Registering it, is just securing that with evidence. Doing so before the work is published (or leaves your controlled environment). Having a record is important.

Read the Federal Copyright law. All cases are judged on the merit of evidence. Who has the strongest case ESPECIALLY when there is a "contesting" case.

http://www.copyright.gov/circs/circ41.pdf

http://www.copyright.gov/title17/

http://www.copyright.gov/title17/circ92.pdf


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## RickAstoria (Sep 3, 2010)

peach said:
			
		

> Once a set of plans gets entered into the building department, it doesn't matter if it's copyrighted or not.. anyone can request a copy under FOIA.


FOIA may allow a copy to be made provide it does NOT violate the copyright rights of a copyright holder who is a private entity. Items copyrighted by public entity is owned by every citizen of the public. Duh! But the copyright of a private entity may not be violated.

The government would be aiding and abetting a FEDERAL crime. First off, at best a person may obtain a copy of public record of copyrighted content for informational and educational use ONLY. The moment the copyrighted content is reproduced after that and / or resubmitted for permits to build the building depicted would be in violation of the copyright UNLESS permission is given by the copyright holder.

In short, the person can get a copy for informational use but not use it to make one or more copies of that building. The FOIA is not for the purpose of facilitating and being a vessel of copyright infringement. The rights of the copyright holder still prevails. Just because you have a copy of windows xp on your office computer does not give the government right to give the public copies of the OS. The OS does not become public right to reproduce. Nor any publication of Microsoft. The same is to be said for building plans. Think carefully, guys.


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## RickAstoria (Sep 3, 2010)

Frank said:
			
		

> The Virginia Freedom of Information Act is very clear that construction documents submitted for building permits are public reacords available for copying with limited exceptions.§ 2.2-3700. Short title; policy.
> 
> A. This chapter may be cited as "The Virginia Freedom of Information Act."
> 
> ...


Read my reply to peach.

No state government may nullify federal law. The State FOIA may not nullify the rights of any copyright holder.


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## RickAstoria (Sep 3, 2010)

http://www.copyright.gov/circs/circ01.pdf


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## peach (Sep 3, 2010)

Didn't I say I thought SBCCI lost at the Supreme level?  Of course, when you order a code book from ICC, the shrink wrap has a notice that it's a copyrighted document and that by opening it, you agree to the copyright laws.

If you've ever worked in a building department, you will know you need to send them to the Clerk's office (which we always provided copies of the codes) to review.. if the customer wanted a page copied, it was at .10 a page.

I just had a conversation with a patent attorney regarding a code issue.  He's ordering the applicable code BECAUSE he feels a judge may ask for the actual code to be entered as evidence.


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## RickAstoria (Sep 3, 2010)

Maybe de-privatizing the model code would be a start and eliminating the need of a private entity and that a public entity for code development would solve the copyright issue.


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## mark handler (Sep 4, 2010)

RickAstoria said:
			
		

> Maybe de-privatizing the model code would be a start and eliminating the need of a private entity and that a public entity for code development would solve the copyright issue.


Maybe of the code, but the tread is  *"Copyright in Architectural Works" *not the Code works


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## Mark K (Sep 4, 2010)

California Health and Safety Code Section 19851 provides some provisions for copying plans and specifications heald by the building department even if the architect objects.


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## mark handler (Sep 4, 2010)

I know that thanks

http://law.onecle.com/california/health/19851.html


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## peach (Sep 12, 2010)

once it's in the public realm, anyone can read/copy everything in the permit records.. they can get copies.. what they do with the copies is between the copyright holder and the person doing something with it.. not the jurisdiction. Worked in a city once where the designer came in frequently to see our FOIA requests... if something belonged to her, she pursued them (not us).


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## mark handler (Sep 12, 2010)

peach said:
			
		

> once it's in the public realm, anyone can read/copy everything in the permit records.. They can get copies..


Not always true...

http://law.onecle.com/california/health/19851.html


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## peach (Sep 12, 2010)

then don't apply for a permit in VA... rules are different in CA, I guess.

Isn't FOIA a federal law???

It's not like a building department copies plans hilly-nilly... it's based on a FOIA request.


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## mark handler (Sep 12, 2010)

peach said:
			
		

> Isn't FOIA a federal law???


The federal FOIA does not provide a right of access to records held by Congress, the courts, *state or local government agencies,* or by private businesses or individuals.

The federal FOIA does not provide a unlimited right of access to  Copyrighted materials


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## peach (Sep 12, 2010)

cool... that makes things alot easier... so who exactly, does it apply to?  sounds like nobody.


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## mark handler (Sep 12, 2010)

peach said:
			
		

> so who exactly, does it apply to?


All governmental agencies not listed above


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## peach (Sep 12, 2010)

like .... what governmental agency isn't federal, state or local.

Publishing for re-sale or reuse is one thing. Already checked with a patent attorney here.

AND since the plans are supposed to be on site, what prevents someone from drawing the basic floor plan and elevation from those plans?


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## mark handler (Sep 12, 2010)

It does not preclude all federal governmental agencies only   "...records held by Congress, the courts...."

You are overthinking this


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## peach (Sep 12, 2010)

so *local* jurisdictions are *totally *exempt?  that makes it easier...


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## conarb (Sep 12, 2010)

Mark said:
			
		

> The federal FOIA does not provide a right of access to records held by Congress, the courts, *state or local government agencies,* or by private businesses or individuals.


 Got a cite for that?



			
				Mark said:
			
		

> The federal FOIA does not provide a unlimited right of access to  Copyrighted materials


True, for national security, trade secrets and some other items.  I think the Federal question would be whether or not plans contained "trade secrets". As far as California H&S Code §19851 is concerned, I think this is one of many conflicts between Federal and state law, this may be coming up, since the Federal government is challenging Arizona's immigration law as usurping Federal authority, there are those now demanding that they do the same thing on California's gay marriage law.

I don't think that any government agency has any right to enforce any individual's civil right to copyright protection, that is and should be a private right of action.


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## mark handler (Sep 12, 2010)

peach said:
			
		

> so *local* jurisdictions are *totally *exempt?  that makes it easier...


From the Federal FIA, Not State FIA.


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## peach (Sep 12, 2010)

thanks conarb... good insight.

good luck with your designs Mark...


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## mark handler (Sep 12, 2010)

conarb said:
			
		

> Got a cite for that?


http://www.copyright.gov/foia/


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## peach (Sep 12, 2010)

funny you would post a federal link.. from the copyright office (which does include patents, medical trade secrets, etc).


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## mark handler (Sep 12, 2010)

Why funny, copyright law is a federal law?


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## Paul Sweet (Sep 12, 2010)

Peach is right.  Virginia's FOIA law says:

§ 2.2-3704. Public records to be open to inspection; procedure for requesting records and responding to request; charges; transfer of records for storage, etc.

A. Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth. The custodian may require the requester to provide his name and legal address. The custodian of such records shall take all necessary precautions for their preservation and safekeeping.

The full law is at:  http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+TOC02020000037000000000000

State FOIA laws may allow citizens to make copies of architectural plans, but federal copyright laws would prohibit somebody form using or selling the plans they copied.


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## conarb (Sep 12, 2010)

Federal law lists 9 exemptions and 3 exclusions, the USDHRSA does a good job of listing them.  Note Exemption #3:



> *Exemption 3: Information Exempt Under Other Laws*
> 
> The third exemption incorporates into the FOIA other                            laws that restrict the availability of information.                            To qualify under this exemption, a statute must require                            that matters be withheld from the public in such a manner                            as to leave no discretion to the agency. Alternatively,                            the statute must establish particular criteria for withholding                            or refer to particular types of matters to be withheld.


It appears that California's H&S §19851 is an attempt to qualify under Exemption 3, undoubtedly something put in there by AIA lobbyists, the question is whether it would stand up to constitutional scrutiny, off hand I'd say no, transparency in government trumps all such protectionist legislation, but what do I know, I agree with the 5th Circuit that once a code is adopted into statute or ordinance it has entered the public domain, but the Supremes won't address that issue for fear of overturning the apple cart, so they may want to leave these overarching copyright laws stand as well, they stay well clear of zoning issues knowing full-well that if they ever really address them they'll throw them out nationwide.


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## mark handler (Sep 12, 2010)

conarb said:
			
		

> I agree with the 5th Circuit that once a code is adopted into statute or ordinance it has entered the public domain, but the Supremes won't address that issue for fear of overturning the apple cart, so they may want to leave these overarching copyright laws stand as well.


Once again, the thread is "Copyright in *Architectural Works*", not code works.


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## conarb (Sep 12, 2010)

Mark said:
			
		

> Once again, the thread is "Copyright in *Architectural Works*", not code works.


Mark:

You are not following me, I am just bringing up the code and zoning situations to show that my opinion doesn't necessarily run with the Supreme Court's,  at this point I'd say that under Federal law there is no exemption for architectural works but there is an exception for statutes creating copyright protection, California has attempted to do that (and maybe other states I don't know), but I do not believe it right that transparency in government is compromised to force government agencies to help architects enforce their civil copyright remedies.


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