Copyright crisis

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Wangjing SOHO in Beijing by Zaha Hadid Architects. A project called Meiquan 22nd Century in Chongqing, a copy of Hadid's project, was also being constructed at the same time.

Wangjing SOHO in Beijing by Zaha Hadid Architects. A project called Meiquan 22nd Century in Chongqing, a copy of Hadid’s project, was also being constructed at the same time. Image: courtesy Zaha Hadid Architects

Copyright battles seem to have been rife throughout the creative professions in recent years. Some architects will be surprised to learn that each of them has a right, as do artists, musicians and photographers, to assert copyright over their designs, models and renderings in the media.

Over the past few years I have written about architectural firms not being credited in press releases about their buildings and, subsequently, they are not attributed in the resulting media articles. This drew a good number of ‘hear! hear!’ responses within the profession but many of the architects I spoke with did not know how to assert copyright over their designs, or were concerned about potentially offending their clients by asking them to credit the architectural firm for all supplied renderings, along with information and materials emailed out to the media.

The crediting of architects is an important way for the profession to regain some ground, having been subsumed by the big contractors and multidisciplinaries, and by the vagaries of a demanding and ever-changing industry.

Architects can and should assert their copyrights to ensure that their designs – as seen in all renderings, photographs and descriptions – are credited in the media and on their client’s websites, etc. It has to be said that many of the international architects with whom I’ve dealt with are better at asserting their copyrights than their Kiwi counterparts. They usually caption their visual material with their firms’ names and they certainly jump up and down in disgruntled fashion if they’re not credited appropriately. Perhaps New Zealand architects ought to do the same.

It doesn’t take an Einstein to realise that it is totally ludicrous that a photographer who spent, perhaps, a day or two shooting an architectural design is credited in the media (and rightly so) but the architect, who spent years (and countless sleepless nights, no doubt) working on the design isn’t mentioned at all.

All creators have the right to be acknowledged for their works. Yes, there is sometimes a wider team involved in the concept design and, in these cases, all parties should sit down during the design phase and agree on attribution.

But the Copyright Act 1994 is clear. Every architect can assert their copyright as the author or “the person who creates a work” and “The author of an artistic work has the right to be identified as the author of the work whenever… in the case of a sculpture, a work of architecture in the form of a building or a model for a building, or a work of artistic craftsmanship, copies of a graphic work representing the work, or of a photograph of the work, are issued to the public.” (Section 4, Moral Rights, 94 (6) and (6)(e)) So, this works in the same way as it does for an artist or photographer who would expect to be credited for their work.

So who owns the copyright on a design? According to John McBride, an Auckland-based barrister whose specialities include the field of intellectual property: “The copyright will be in the plans (which will be “artistic works”), although it can also be in the building itself (a “work of architecture”) or a “model” of it.

The basic rule is that the person who commissions and agrees to pay for the plans will be the “presumed” first owner of the copyright. But that is only a “presumption” and it can easily be reversed by an “agreement to the contrary”. That agreement can be in writing but could also be no more than a verbal agreement, or even an agreement that is just “implied” from the situation. It is a very similar situation for photographers.

McBride goes on to explain that, ” So architects need to, firstly, get their clients to agree the architect is first owner of copyright. Don’t leave it to a verbal or “implied” agreement because that leaves too much scope for argument – get it in writing. All it needs is for the contract with the client to say the architect will be the owner of the copyright. Secondly, architects should “assert” their copyright – mark the internationally recognised copyright claim symbol on any work of yours in which you own copyright, such as your concept design renderings.”

This is not a legal requirement but it serves as notice to everybody else that the architect owns that copyright. Thirdly, even if you have lost your copyright, assert your so-called “moral rights”. Moral rights can be a difficult concept to get your head around because it is not really to do with morals and it covers a number of different things. But if an architect has asserted the moral rights it includes the right, even after copyright has been lost, to be attributed as the designer of that building.

So, architects should label their renderings ‘©XYZ Architects 2016’ which includes the date the rendering was created. McBride also suggests that architects should assert their moral rights so the combined notice would say: ‘©XYZ Architects 2016, all moral rights asserted’.

For further information, McBride has written a clear explanation about Copyright and Moral Rights on his website, which is in relation to photography but the position of architects is very similar. Information can also be found on the New Zealand Legislation website.

It appears that broader issues around copyright have been brewing within the architectural profession over the past few years.

Nicole Stock wrote an opinion piece on the subject in Architecture New Zealand 3.2013, mentioning the ‘copycat’ buildings of Zaha Hadid designs in China, which have proven to be some of the most controversial and strikingly obvious examples of copying, but there is increased debate around the issue because not all examples of copying are clear-cut. When does sampling or referencing (homage) sneak into ‘copying’ territory, for example?

Architecture can, perhaps, learn from other creative professions in this regard. Few will have missed the very high-profile US lawsuit involving a $7.4-million win by the family of deceased songwriter and musican Marvin Gaye, who demonstrated that Robin Thicke and Pharrell Williams’ song Blurred Lines (2013) is substantially similar to Gaye’s Got to Give It Up.

In September 2014, the two musicians filed a lawsuit claiming that the family was attempting to claim ownership of an entire genre, which led to a counter-suit by the Gaye family asserting that the song was ‘infringing’.

According to Billboard magazine, “Both sides trotted out musicologists and mash-ups, debated the nuances of copyright law…” The end result is Judge Kronstadt’s conclusion that the Gaye family “has made a sufficient showing that elements of Blurred Lines may be substantially similar to protected, original elements of Got to Give It Up.”

The judge pointed out the ‘substantial similarity’ of signature phrases, hooks, bass lines, keyboard chords, harmonic structure and vocal melodies of the two songs, although the family is unable to claim infringement for elements not included in the sheet music deposited with the copyright office.

I’ve debated this issue with a number of people, with several stating that they’re dissimilar enough for it not to be copying but I disagreed. I would describe the structure and character of Gaye’s original song as the same in Blurred Lines. It would be as if Sir Miles Warren designed a house and then another architect built his original design but changed the façade and roof materials, and the landscape, and then still claimed to have ‘created’ the design.

In journalism, we quote many sources in an article, rather than directly copy another writers work. Perhaps the design profession could operate along these lines by acknowledging direct samples or references, paying copyright fees to other architects for usage, as appropriate, and honouring the wider team on a project. A simple declaration or dedication is sometimes all that is needed.

And commissioners of architects should rightly pay respect to the creators of their buildings that will serve many people, communities and the like for generations to come. It doesn’t take much to acknowledge the work of others and this respect revolves full circle.

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