...continued Project is client's but plans, concepts belong to architect, despite misperception

documents," he added.
   Dennis Young, president and chief executive officer of Fairview Heights-based Wm. B. Ittner Inc., says there's nothing wrong with appreciating great architecture and wanting to incorporate great design based on something you've seen somewhere else. But there's a difference between being inspired and copying.
   "Usually what someone ought to do is look and appreciate the value of that original idea and then see how to appropriately apply that to their particular situation, and then it's not a direct copy," Young said. "If we were in a situation where we came on board where someone already had a prototype from another architect and asked us to redesign it, we wouldn't do it. We would tell them to go back to the original architect, or to ask for a letter from the original designer, if for some reason that firm was no longer willing or able to do the work. Once we use another's design, we're responsible for it. It's important not to blindly reuse another's plans," he said.
   Popular cable television networks such as HGTV reinforce the general misconceptions that design concepts and completed design work is "free" for the using, Lefferson says.
   "I really think HGTV has promoted the misconception that design is 'free,'" he said. "They've done a lot to harm the design industry by making the design process appear as though the work just happens and no fees are paid."
   Harvey Yusman, an attorney specializing in intellectual property and technology practices at Greensfelder, Hemker & Gale P.C., agrees that in both the commercial and residential design worlds, misperceptions exist as to what belongs to whom. Yusman's work involves intellectual property protection of all kinds.
   "It's an intangible right, so it becomes esoterical," said Yusman. "It (copyright infringement) happens in almost every business you can imagine."

   The real question to ask, in terms of who truly owns those architectural drawings, is who owns the copyright.
   "We refer to it as 'work made for hire,'" said Yusman, "and there are basically two classes. Initially, any person who creates or develops the work - the author - owns it, but there are two instances wherein if a company pays someone else for their services it may still be considered work for hire."
   The first, he said, is if the person is a true employee and creates the work within the scope of his employment; in this case, the corporation owns the copyright. The second would be if an independent contractor expressly agrees in writing - with his client - that it's a work made for hire. And even then, the work itself must fall into nine very specialized categories including motion pictures, atlases, audio-visual works, answer sheets for texts and five others that are not relevant to commercial architectural work.
   With regard to the importance of copyrighting plans and concepts, Yusman says, the important thing to remember is that the copyright attaches the minute the concept itself is reduced to a tangible form. "If you're an architect, you can put 'All Rights Reserved' on your plans the minute that work is reduced to paper. You don't have to register it first. You can also put the capital 'C' with a circle around it right away," he said.
   Registering the work for copyright within 120 days of its first publication does entitle its creator to statutory damages, should he have to sue for them in court, said Yusman. For the modest fee of $45 per work, it also enables the plaintiff to try to recoup any attorneys' fees.
   Why would a creator assign away his drawings, plans or other original, copyrighted work anyway? Yusman says it is rarely done.
   "The only time we've seen the creator assigning the rights are with publication contracts," he said. "If it's a pretty good manuscript authored by an unknown writer, a small publishing company may go ahead and publish it - but it will only do so if it can have the full copyright so it publish it wherever can make it successful."

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