Under both Oregon and Washington law, a lien for architectural services remains the most immediate way to protect an architect’s work. A lien, however, is intentionally limited in its scope and available remedies. A lien also is intended to be enforced without significant delay or complication.

Conversely, a copyright is a much broader protection for architectural work, has a significantly longer window of protection – and can be correspondingly more difficult (and expensive!) to enforce.

Yes, Virginia, there is copyright protection for architectural work. Architectural works were added to the list of copyrightable works of authorship when the Architectural Works Copyright Protection Act was passed in 1990.

The AWCPA’s impact is not limited to architects. A contractor who constructs a building “substantially similar” to another one for which the design is protected by copyright could be liable for copyright infringement.

Damages include both “actual damages,” which could be the fair market value of the copyrighted plans and designs, and any profits that are attributable to the infringement. Start computing the profit from each house constructed in a subdivision using copyrighted plans and the protection/exposure under the AWCPA becomes obvious.

The AWCPA protects “the overall form as well as the arrangement and composition of spaces and elements in the design,” but does not protect “individual standard features” such as “common windows, doors or other staple building components.”

While a copyright may not mimic the “love and generosity and devotion” personified in the 1897 New York Sun editorial supporting Santa Claus, it still can provide some measure of protection for architects regardless of the season. The legendary Virginia was cautioned that disbelieving in Santa Claus could be the end of the poetry and romance that make life worth living. The same could be said about a copyright for architectural work.

Overblown? Not at all – an architectural copyright protects the “gestalt” of the plans, including things like an architect’s choices regarding shape, arrangement and location of buildings; the design of open spaces; the combination of individual design element; and even the location of parking and sidewalks. Clearly, copyright law wants to protect the poetry and lyricism of architectural work.

While an architectural lien is the scullery worker of protection (hardworking, blunt and straightforward), an architectural copyright is the master chef (creative, difficult to define and confine). Architects should consider both liens and copyrights to protect their work – they don’t have to choose between the two.

What is protectable under copyright law is the romance, the composition, the originality of the design, the Santa Claus of a designer’s imagination. OK, maybe that is a bit overblown.

Courts have looked to the following factors to decide whether an architectural work is protectable: 1, whether the features are simply individual; 2, whether those features are essential or common to the architectural style within which the builder designed the structure in question – i.e., paneled doors accentuated by classical pilasters are typical of Georgian architecture and not typically “original” in design, and would probably not be subject to copyright protection; and 3, whether external restrictions such as building codes and restrictive covenants have influenced the design choices.

An Oregon court noted that the idea of including a master bedroom in a home was not protectable, but the “original and creative expression” of the idea of the location and size of the master bedroom are protectable.

To be sure, the concept of creativity is not a high standard in copyright law. The United States Supreme Court has observed that while an architectural work must contain some modicum of creativity, it doesn’t have to be novel. The vast majority of architectural work would qualify for copyright protection “no matter how crude, humble or obvious.” Nevertheless, originality remains a requisite of copyright law.

It is not enough to have a design be protectable, even if only arguably so. To be protected, it must be registered. To establish a claim for infringement, an architect must prove: 1, the ownership of a valid copyright; and 2, the copying of the elements of the work that are original.

Both prongs of the infringement analysis are complicated and nuanced and, like construction liens, require informed legal advice. The payoff and the exposure are significant.

Jill Schneider is a construction attorney in the Portland office of Schwabe, Williamson & Wyatt. She focuses her practice on lien laws, construction defects and commercial disputes. Contact her at 503-796-2496 or jschneider@schwabe.com.

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The Georgetown Center on Education and the Workforce recently reported that the unemployment rate for recent college graduates is highest in architecture (13.9 percent) because of the collapse of the construction industry.

With that dismal statistic all too easily acknowledged, architects should take comfort in the fact that, once a job or project is secured, both the Oregon and federal governments really, really want the architects to be paid and their work protected.

Governmental assistance provided by law for architectural work exists under two statutory schemes: copyright law and construction lien laws.

Protection through construction lien laws is not new. In what could be viewed as the first government stimulus program, Thomas Jefferson first introduced the Mechanic’s Lien Act in the Maryland Legislature in 1791 to encourage construction for what would be the nation’s capital in Washington, D.C. The impetus behind the new law was to provide protection to contractors and tradespeople so that they had an additional remedy besides the right to sue on their contract. At the same time, the lien law increased the capacity of capital markets by “allowing” a landholder to use his land as security for improvements.

Jefferson probably took his cue from the French Napoleonic Code, which contained the concept of mechanics’ liens. Indeed, the term “lien” comes from a French root, which means to bind. The idea of a security interest in the title to property for the benefit of those who have supplied labor or materials that improved the property would have been foreign to the English notion of a feudal system of land ownership. English common law recognized mechanics’ liens only as they pertained to personal property, not real property. To maintain the lien under English law, the artisan had to retain possession of the article until he or she was paid.

In the United States, where real property was abundant and financing unreliable, interest grew quickly in the notion of providing a legal incentive to encourage construction by securing a laborer’s work through liens. In 1851, only three years after Oregon was named a territory and before it became a state, it adopted its own original construction lien law. The construction lien statutes are presently codified at ORS 87.001-.093.

Oregon courts have not addressed architectural liens as frequently as other construction liens. Nevertheless, the statutes specifically include and apply to design professionals. Indeed, under ORS 87.010(5), architects and engineers can be entitled to a lien for their work even if the project is not built.

As important as the rights and obligations under lien statutes are, they are not elastic. Because construction liens were unknown in common law, the remedies available under the statute are limited to those who comply with the statutory conditions for the creation of the lien.

An Oregon court has described lien claimants lyrically: “like claimants for Cinderella’s slipper, an exacting demand must be met by applicants for a lien, and all who cannot conform are rejected.”

The common theme uniting the strict deadlines and contractual requirements of the lien statutes is notice. Because a lien can result in foreclosure, an owner is entitled to know when he may be subject to a lien’s substantial risk. For architects (and contractors), the contract with the owners serves as the notice.

In a 1994 Oregon case, Calapooia Pole Structures v. Moulder, a contractor constructed a pole building on the defendant’s rural residential property. When he was not paid, the contractor filed a lien. The owner claimed the lien was not valid because he had not received the Information Notice to Owner required by ORS 87.093.

The court disagreed, holding that the statutory notice requirement did not apply because it was clear that the parties did not intend to enter into a contract for a home improvement as defined in the statute. The contractor was not allowed to call the structure a “home improvement” to try to use the lien statutes for its own gain. As the court noted, it was “not the location of the structure, but the nature of the contract that determines whether the statutory notice is necessary.”

Similarly, in L.H. Morris Elec. Inc. v. Hyundai Semiconductor America Inc., decided in 2005, the court examined a lien claim in the context of the contract between the parties. The court concluded that the lien statute was intended to hold – or cap – the party seeking the lien to the bargain he made with the owner.

The strict requirement of proper notice was recently underscored in Morrow County. Under ORS 87.010(5), in order to be entitled to a lien, the architect must have prepared his plans, drawings or specifications “at the request of the owner.” The Morrow County court dismissed a $450,000 lien filed by a licensed architect at summary judgment because the owner had deleted all references to architectural services in the architect’s professional services contract.

There was additional evidence that the owner had explicitly rejected the proposition that the architect’s work was for architectural services, preferring to view the “professional services” provided by the architect more akin to development work. Accordingly, the owner successfully argued that the work performed by the licensed architect over a two-year period was not architectural work done at the request of the owner. Thus, he argued, he did not have the requisite notice that a lien might be available to the architect. The Morrow County court agreed and invalidated the lien.

As the Morrow County decision points out, not only are the statutory requirements for a lien mandatory, ignoring those mandates is perilous. An architect is entitled to his attorney fees and costs for enforcing a valid lien. If, however, the lien is invalidated, it is the owner who is entitled to recover his fees and costs from the architect.

The government does not like to be fooled. A correctly filed lien can buttress an architect’s bottom line. An incorrectly filed lien can be ruinous.

Jill Schneider is a construction attorney in the Portland office of Schwabe, Williamson & Wyatt. She focuses her practice on lien laws, construction defects and commercial disputes. Contact her at 503-796-2496 or jschneider@schwabe.com.

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Add loss of market value to the litany of woes an owner faces in construction defect cases. It is not uncommon for an owner or developer to want the contractor to assume responsibility for the loss in market valuation, in addition to the property damage losses. Unlike claims such as water intrusion and structural failure, however, the loss of a property’s market value in the last several years is not generally recoverable under Oregon law.

The controlling case on the issue of market value damages is Oregon Steel Mills v. Coopers & Lybrand, LLP, decided by the Oregon Supreme Court in 2004. In that case, the court was asked to consider whether a client in a professional malpractice action could recover losses caused by market forces. The case involved the claim that an alleged error by an accounting firm delayed a plaintiff’s public offering of stock. The plaintiff claimed it was entitled to the difference in price of the stock on the date the stock was intended to be offered and the delayed date on which the offering took place.

The court rejected the claim of lost profits. It acknowledged that there was no dispute that “but for” the delayed offering caused by the accounting error, the stock would have been offered on a date when the stock price proved to be higher. However, the court decided that the defendant’s actions had not caused the decline in stock prices. Rather, it was the intervening action of market forces on price, not the defendant’s actions, that was the “harm-producing force” for the loss. Therefore, the plaintiff was not entitled to recover the loss of market value.

In the context of construction defect cases, the Oregon Steel Mills case requires an owner to prove both that the construction errors were the reason the project was delayed and that those errors caused the decline in property value. That argument has little chance of prevailing. One need only look across the street to verify that the market values of all properties have declined recently, and not just those afflicted with construction defect claims. Sharing the pain may be good for the soul; however, it will not sustain a claim for loss of market value.

Jill Schneider is an associate in the Portland office of law firm Schwabe, Williamson & Wyatt. She focuses her practice on construction law, including construction defects, and commercial litigation. Contact her at 503-796-2496 or jschneider@schwabe.com.

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