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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 consideredthe 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.
Direct questions about this or any other JOM page to jom@tms.org.
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