Issue No. 1: under federal copyright law can architect sue for damages for copyright infringement by builder who copied unregistered preliminary plans given to builder by architect's client for purposes of obtaining an estimate of costs of construction?
Issue No. 2: under federal copyright law can architect collect, as actual damages, the value of the plans from the builder once the plans and specs have been paid for by the architect's client (ie. if the architect's total fee for the plans is $100.00 can the architect also collect another $100 from the builder who copied plans)?
Facts: Under AIA agreement, client hires architect to provide architectural services (including plans and specs) for a fee equal to 10% of the actual cost of construction. AIA agreement provides that architect remains the owner of the plans but gives the client the right to use the plans to build residence. Prior to payment of 50% of the balance of the fee, when the plans are nearly complete, the client is given a set of preliminary plans and specs marked "not for reproduction nor for construction" with permission only to show the plans to builders but not to copy and reproduce them. Client disregards instruction, copies the plans and gives them to builder to come up with estimated bid. Builder in turn reproduces numerous copies and disseminates them to subcontractors and suppliers. Client has so far refused to pay for the balance due for the plans. Architect will arbirtrate claims against the cleint to collect balance of fee. Architect wants to sue builder for infringement and collect damages for the value of the plans, the same amount that client has partially paid for and which architect seeks in the arbirtation. Architect can't prove that builder has yet profited from infringement because plans have not been used for building a home for client or elsewhere. But architect believes he can collect damages for the value of the plans as measured by the sums that client will eventually have to pay.
The plans have never been registered so appears statutory copyright damages are not available.
Issue No. 2: under federal copyright law can architect collect, as actual damages, the value of the plans from the builder once the plans and specs have been paid for by the architect's client (ie. if the architect's total fee for the plans is $100.00 can the architect also collect another $100 from the builder who copied plans)?
Facts: Under AIA agreement, client hires architect to provide architectural services (including plans and specs) for a fee equal to 10% of the actual cost of construction. AIA agreement provides that architect remains the owner of the plans but gives the client the right to use the plans to build residence. Prior to payment of 50% of the balance of the fee, when the plans are nearly complete, the client is given a set of preliminary plans and specs marked "not for reproduction nor for construction" with permission only to show the plans to builders but not to copy and reproduce them. Client disregards instruction, copies the plans and gives them to builder to come up with estimated bid. Builder in turn reproduces numerous copies and disseminates them to subcontractors and suppliers. Client has so far refused to pay for the balance due for the plans. Architect will arbirtrate claims against the cleint to collect balance of fee. Architect wants to sue builder for infringement and collect damages for the value of the plans, the same amount that client has partially paid for and which architect seeks in the arbirtation. Architect can't prove that builder has yet profited from infringement because plans have not been used for building a home for client or elsewhere. But architect believes he can collect damages for the value of the plans as measured by the sums that client will eventually have to pay.
The plans have never been registered so appears statutory copyright damages are not available.
