The following article appears in the journal JOM,
47 (9) (1995), p. 65.

JOM is a publication of The Minerals, Metals & Materials Society

Copyright Protection for Engineering Drawings

Arnold B. Silverman

The U.S. copyright system has it roots in the U.S. Constitution, which makes express reference to protecting all the writings of an author. The 1909 Copyright Act, in its list of examples of works that could be protected by copyright, includes "drawings or plastic works of a scientific or technical nature." The word "drawings" was intended to refer to two-dimensional works, and the reference to "plastic works" was intended to refer to three-dimensional works. The 1976 Copyright Act, while using different language, reiterates the right to copyright scientific and technical drawings.

The general standard for copyrightability is that an author may protect original works of authorship fixed in any tangible medium of expression. The creator of an engineering drawing, therefore, is entitled to copyright protection for the original portion of the drawing. The copyright standard of originality requires only that there be a minimal amount of creativity.

A copyright generally gives the exclusive right to copy and publicly display the work and to make works derived therefrom. It also gives the exclusive right to distribute copies of the work to the public. The author gets certain copyright rights automatically upon creation of the drawing; these rights are enhanced by obtaining copyright registration from the U.S. Register of Copyrights. Prior to distribution of a work to the public (i.e., publication), an author has a copyright in the unpublished work under the Copyright Act. This copyright may be protected by registration as an unpublished work. After publication, it may be registered as a published work.

A copyright in a work created after January 1, 1978, is valid for the life of the author plus 50 years after the author's death. The term for works made for hire is 75 years from the year of first publication or 100 years from its creation, whichever is shorter.

Prior to March 1, 1989, when an author published a work such as an engineering drawing, copyright protection could be forfeited if the appropriate copyright notice was not placed on the work. The notice might consist of the word "copyright" or a (c) followed by the name of the copyright owner and the year in which publication occurred (e.g., (c)John Jones, 1989). After March 1, 1989, as a result of the United States adhering to the Berne Convention international treaty, the requirement of a copyright notice on a published work was eliminated. While it is desirable to use such notice, it is no longer essential.

If someone created an engineering drawing in the course of his or her duties as an employee, the work would be deemed a work for hire and the copyright would belong to the employer. Except for a number of narrow statutory exceptions not generally related to engineering drawings, if someone created the work as a consultant to another in the absence of an assignment to that other, the one hiring the consultant would have a license to use the work, but the creator would own the copyright.

One limitation on the copyright on engineering drawings is that it does not, in general, give the copyright owner the right to prevent a third party from creating a utilitarian object in accordance with the drawing so long as no unauthorized reproductions of the drawings are made. For example, engineering drawings relating to a highway sign could not be copied without violation of the copyright, but the copyright would not be infringed by a third party constructing a sign in accordance with the drawings. Part of the rationale for this approach is that the copyright system is a registration system that requires merely compliance with the formalities of the statute in order to obtain a copyright. Unlike patent applications, obtaining a copyright does not involve a rigorous investigation of prior art and an examination of the utility, novelty, and unobviousness of the work with respect to the prior art. An author merely needs to have a nominal amount of uniqueness to obtain a copyright. As a result of the differences in these two systems, it was not deemed desirable to give the equivalent of patent protection through the copyright.

One exception to this general limitation on drawings occurs with respect to architectural drawings. Under prior law, architectural drawings could be protected by copyrights. The Architectural Works Copyright Protection Act of 1990 provides for the copyrighting of a building as a separate copyright from the drawings, provided the design was created after December 1, 1990. A building in this context refers to a structure habitable by people, including houses and office buildings. Another exception to the copyright arises under the doctrine of fair use. Under certain circumstances, a use that might otherwise be deemed infringing is excused. In evaluating whether a particular use is a fair use, certain factors are considered—the purpose and character of the use, including whether it is of a commercial nature; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect of the use on the potential market for or value of a copyrighted work. For example, copying an article from a six-year old periodical for purposes of personal use would be fair use, while repeated copying of articles from current issues of the same periodical for commercial purposes would not because the latter would tend to deprive the copyright owner of subscription sales.

Like published drawings, unpublished drawings protected by copyright do not need to contain a copyright notice. Under the current law, drawings created after March 1, 1989, even if published, do not need a copyright notice. Therefore, the absence of a copyright notice does not necessarily mean that there is no copyright in the work. A check of the Copyright Office files can be made to determine if the copyright has been registered. The fact that there is no registration, however, does not mean that there are no by the owner. A threshold question is whether a proposed use or reproduction of the third parties' drawings would involve an infringement of the copyright, if one exists.

Copyrights can be valuable rights that may be perfected through registration inexpensively and in a relatively short time. The opportunity to protect, by copyright, creative efforts in respect to engineering drawings and related drawings should be considered in instances where the drawings are of potential value to a third party and where the author would like to be in the position of controlling use by third parties.

Arnold B. Silverman is a partner in the law firm Eckert Seamans Cherin & Mellott, 600 Grant Street, 42nd Floor, Pittsburgh, PA 15219; telephone (412) 566-6000; fax (412) 566-6099; e-mail ARNIE@TELERAMA.LM.COM.

Copyright © 1995 by The Minerals, Metals & Materials Society.

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