Virginia Business Litigation Lawyer Blog

Architectural drawings are not entitled to a great deal of protection under the United States copyright laws, but to the extent a drawing contains a creative, original combination or arrangement of spaces and design elements, the work will be entitled to some level of copyright protection against acts of infringement.

In a recent Virginia case, Commonwealth Architects sued Rule Joy Trammell + Rubio, LLC ("Rule Joy") in the Eastern District of Virginia, claiming that Rule Joy infringed its copyright in certain architectural drawings by scanning them to PDF format. Rule Joy moved for summary judgment, taking the position that Commonwealth Architects did own any valid copyright in the architectural drawings and that, even if it did, Rule Joy did not copy any protected elements of the drawings. Judge Henry E. Hudson, relying primarily on Intervest Constr., Inc. v. Canterbury Estate Homes, Inc., 554 F.3d 914 (11th Cir. 2008), held that Commonwealth Architects owned "a thin, but valid, copyright" in its architectural drawings, and denied Rule Joy's motion.

Under the Copyright Act, protected works of authorship include, among other things, "architectural works" under 17 U.S.C. § 102(a)(8). Architectural works are defined as "the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features," such as common windows or doors or standard space configurations. The court noted that while individual standard features are not copyrightable, an architect's original combination or arrangement of such elements involves a degree of creativity and may very well be copyrightable. Still, the court compared the copyright protection affordable to architectural works to "compilations" and described the level of protection as "necessarily thin."

The court treated the architectural drawings at issue as "derivative works" because they adapted and transformed preexisting hotel drawings into into a "new" design that added apartment living and retail space while retaining the look and feel of the original. Derivative works, like architectural works in general, receive only thin protection in that only the original material contributed by the new author receives copyright protection.

This thin level of protection, however, was sufficient to enable Commonwealth Architects to survive summary judgment, as a reasonable jury could find that Rule Joy's scanning of the drawings to PDF constituted infringement of copyright. The court noted that while much of the drawings may be undeserving of protection, Rule Joy failed to demonstrate, as a matter of law, that every single design choice was unprotectable. "Commonwealth's drawings contain protected expression, albeit thin and constrained," the court held.

Virginia, unlike some other states, adheres to a policy favoring freedom to contract. Virginia law treats most businesses and individuals as presumptively capable of negotiating in their own best interests, and when a deal is reached and a contract is signed, courts rarely interfere with the result, however unfair that result may seem to outside parties.

In construction contracts, for example, it is common to find a "pay when paid" clause, stating that a subcontractor's right to any payments from the general contractor is expressly conditioned on the general contractor's first receiving payment from the owner. Some states go out of their way to protect subcontractors from the potential harsh consequences such a provision can cause. Virginia courts, however, will assume that the subcontractor was sophisticated enough to know what it was signing and will enforce contracts as written.

The freedom to contract includes the freedom to negotiate pay-when-paid clauses, and Virginia courts will enforce such clauses provided they are clear and unambiguous. In Universal Concrete Products v. Turner Construction, Universal, a subcontractor, entered into a written agreement with Turner, the general contractor, to install pre-cast concrete on the Granby Tower project in Norfolk, Virginia. When the real estate market collapsed, the owner became unable to finance the construction. Universal, however, substantially completed all of its work on the project, and naturally asked Turner to pay for its services. Turner refused to pay Universal because Turner had not been paid by the owner and the parties' subcontract contained a pay-when-paid clause.

The specific clause in question provided that the "obligation of Turner to make a payment under this Agreement, whether a progress or final payment, or for extras or change orders or delays to the Work, is subject to the express condition precedent of payment therefor by the Owner." While that language seems pretty clear, Universal argued that it was ambiguous in light of language in the contract between Turner and the owner, which provided that the owner would reimburse Turner for "payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts," suggesting perhaps that Turner would pay Universal before being paid by the owner. The Eastern District of Virginia disagreed, and so did the Fourth Circuit.

The Fourth Circuit affirmed the district court's conclusion that the clause in the Turner-owner contract related only to the amount of the reimbursement, not to when those amounts would be paid. This language did not render the pay-when-paid clause ambiguous (and thus unenforceable) because it did not make its meaning "of doubtful import" or make it capable "of being understood in more than one way." The pay-when-paid clause was clear and unambiguous, so the subcontractor was not entitled to demand payment for its work until the contractor received payment from the owner.