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A land surveyor and planner (“Sparco”) was entitled to copyright protection of his plans and drawings. Perhaps even more important, however, was the protection afforded the survey pursuant to his contract barring the owner from revising or using the surveyor’s drawings without his consent and participation. As to his proposed improvements to the site, the plan included the location and contour of the building footprint, the location and contour of parking lots; placement and design of curbs, driveways and walkways as well as utilities, plants, trees and lights. The surveyor/planner applied for and obtained a certificate of copyright for the site plan. Being unsatisfied with the building design, the owner replaced the project architect with a construction management firm to revise and complete the project. This resulted in Sparco also being replaced. With what were apparently only minor revisions, the new team used Sparco’s drawings and plans. Sparco brought suit, claiming that his copyright had been violated.

The trial court concluded that to the extent that Sparco’s site plans identified existing factual information about the site, it was not a violation of a copyright for the Owner to use that information even though it was contained and included within the plans produced by Sparco. But in addition to representing existing physical features of the site, the site plan also included proposed physical improvements drawn by Sparco. As to those elements, the trial court denied copyright protection because it believed they were depictions of conceptual ideas of a general nature, insufficiently detailed to be utilized in construction of the building. For that reason, the trail court concluded that the defendant’s only copied “ideas” and “ideas” cannot be protected by copyright.

In reviewing the case law concerning what is to be deemed merely an unprotected “idea” and what can be copyrighted as an author’s more precisely detailed depiction of that idea, the court reviewed several case precedents that distinguish between whether the copying was of the author’s generalized ideas and concepts or of the author’s more precisely detailed realization of those ideas. The appellate court held that the trial court incorrectly applied the law to the facts. In this case, the appellate court concluded that Sparco’s site plan specified more than vague, general indications of shape and placement of the elements. “It provides detailed specifications for preparation of the site.” For this reason, the court reversed the judgment of the lower court and will allow the question of copyright infringement to proceed. It is interesting to note, however, that in a footnote, the appellate court stated that Sparco had brought a separate claim for breach of his contractual rights that barred the owner from using his site plan without his consent and on-going participation. The contract between the land surveyor and project owner stated that the surveyor’s drawings and plans would not be used by the client “for the completion of this project by others, except by a separate agreement in writing, and with appropriate compensation to the surveyor.” The court states: “That claim was settled. It therefore appears that Sparco was compensated for defendants’ unpermitted copying and their failure to use his services in amending the plan. If those losses have already been compensated, it is not easy to see what further damages might remain available for copyright infringement.” Sparco v. Lawler, Matusky, Skelly, Engineers, 303 F.3d 460 (2nd Cir. NY 2002).
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Risk Management Note: The court’s footnote about the breach of contract claim based on the same facts as the copyright infringement claim highlights an important point concerning contract remedies. By including language in the contract specifically barring the owner from revising and using the site plan without his consent and participation, the surveyor established protection that was easier to enforce than was the copyright itself. Whereas there could be debate over what types of information and depiction of data could be protected under the copyright laws, there was apparently little or no debate over the protection afforded under the very precise language of the contract. This is why it is so important that the parties to these contracts pay close attention to who is given ownership and use of the Instruments of Service, and what conditions are established for such use.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 4, No. 10 (Nov 2002).

Copyright 2002, ConstructionRIsk.com, LLC