The Ninth Circuit Court of Appeals held in Foad Consulting v. Musil Govan Azzalino 2001 DJDAR 11640 (October 30, 2001) that a party for whom architectural and engineering drawings had previously been prepared could grant an implied, non-exclusive copyright license on those drawings to a subsequent firm who had taken over the same project.
Facts: There, a consulting group was asked to develop a shopping center. After obtaining city approval on drawings by a prior firm, it appointed a developer who in turn appointed another firm to complete the project. That architectural firm then prepared final site plans; in the process, it copied from the prior plans by tracing over them onto an overlay. When the city was unwilling to allow any major deviations from the site plan, the “revised” plans were submitted to the city and circulated to the various tenants. Claims of copyright infringement followed, resulting in the lawsuit.
Court Ruling: Based on the facts, the Ninth Circuit determined that the consulting group had granted the developer a non-exclusive license to reproduce and adapt the project’s plans and publish a “subsequent work.” Further, the court found that the architectural firm’s modification and use thereof did not exceed the scope of the implied license.
Recommendations: If you are asked to modify or take over prior plans/drawings, we recommend first checking with counsel to avoid infringement claims.
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