Tag: architecture

Beware of the Barter: A Cautionary Tale

A recent ruling by Tennessee’s top court sends a strong message: be leery of waiving traditional forms of payment in favor of accepting goods or services. In TWB Architects, Inc. v. The Braxton, LLC, et al., an architecture firm and a cash-strapped developer executed an agreement for the architect to receive a penthouse condominium instead of his design fee. When the developer could not deliver a deed for the condominium, the architecture firm sued the developer for its fees.

So far, the ensuing litigation has lasted over 10 years and, most recently, resulted in an opinion by the Supreme Court of Tennessee that reversed summary judgment in favor of the architect and remanded the matter back to the trial court for still more proceedings.

The parties originally entered in a standard Architect Agreement, whereby the plaintiff, TWB Architects, was to be paid for its design services based on two percent of the construction costs for the project. After failing to obtain sufficient financing for the project, the defendant, The Braxton, informed TWB that it could not pay the design fees and suggested TWB accept a condominium in the project as payment instead. TWB agreed, and the parties executed the Condominium Agreement.

Thereafter, TWB’s owner acted as though he owned the condominium contemplated in the deal, which just so happened to be a penthouse. He invested nearly $40,000 in upgrades and repeatedly referred to the penthouse as “his penthouse.” In December 2008, he moved into the penthouse and represented himself as its owner.

However, shortly thereafter, issues arose with Braxton’s ability to deed the condominium to TWB’s owner. At that point, TWB decided to change course. It claimed that it was still entitled to the original design fee under the Architect Agreement and filed a mechanic’s lien for the unpaid fees. Braxton claimed the Condominium Agreement had acted as a novation, nullifying the Architect Agreement and, accordingly, TWB’s ability to collect its fee thereunder.

The trial court granted summary judgment in favor of TWB, holding it could still recover its design fees because there was insufficient evidence that the parties intended a novation by substituting the Architect Agreement for the Condominium Agreement. The court of appeals affirmed, but the Tennessee Supreme Court reversed. The Supreme Court found that summary judgment was improperly granted because disputed questions of material fact existed about whether TWB and Braxton intended a novation when they executed the condominium agreement.

Unless the parties can settle the matter, the case will now require a trial to determine whether TWB can recover its fees. It’s unknown whether TWB’s owner is still living in the penthouse.

This case is a great example of how a tempting barter – like accepting a penthouse from a cash-strapped developer – may sound like a nice solution at the time, but can lead to further headaches and protracted litigation.

© 2019 BARNES & THORNBURG LLP

For more developer-architect concerns, see the National Law Review Real Estate law or Construction Law pages.

Using Copyright Protection in Architectural Works to Police Unauthorized Photographs

Can I stop photographers from taking, displaying, and selling photographs of my building? The answer is, like the answer to so many other questions, maybe.

This issue often arises in the context of photographers who license their photographs for a fee through online stock image sites. The photographs are taken without authorization and present a building (and potentially the owner or occupants) in a negative light or disclose features of the building that the owner or architect would prefer remain visible only to those who see the them first hand.

If the area of concern is a building’s interior, the first step in limiting unauthorized photographs is to expressly prohibit photography. If you can show proof of such policies, most websites will remove the photographs without further question. But for various reasons, you may not have an express policy posted in your building. If that is the case, another option may be to enforce your intellectual property rights in the building itself.

Copyright protection subsists in original works of authorship fixed in any tangible medium of expression, including architectural works. 17 U.S.C. § 102(a)(8). An owner of a copyright in an architectural work may prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is not located in or ordinarily visible from a public place. See id. § 120(a). Thus, if a building embodying a design to which you own the copyright is the subject of someone else’s photograph, you can potentially stop the display and distribution of that photograph.

Whether you own the relevant copyright should not be difficult to determine. It either belongs to the creator of the building’s design (i.e., the architect) or, by agreement, to someone else (perhaps the building’s owner). Whether your building is a building for purposes of the Copyright Act is slightly more complicated. According to legislative history, the term “buildings” includes “habitable structures such as houses and office buildings. It also covers structures that are used, but not inhabited, by human beings, such as churches, pergolas, gazebos, and garden pavilions.” H.R. Rep. No. 101-735, 101st Cong., 2d Sess. 20 (1990).

Assuming your structure is a “building,” the final question is whether it is located in or ordinarily visible from a public place. Legislative history does not provide guidance on the interpretation of this phrase, presumably because the legislature believed public place would be understood according to its plain meaning—i.e., “any location that the local, state, or national government maintains for the use of the public, such as a highway, park, or public building.” Black’s Law Dictionary (9th ed. 2009). Courts have likewise been silent on the issue.

Nevertheless, stock image sites are reluctant to simply accept a presumption. Their business depends on their users being able to take and license photographs, and, for them, a more expansive view of public place is preferable. In our experience, many sites will argue that any property open to the public is a public place, regardless of whether the property is privately owned. This interpretation, however, would render buildings like churches and museums not protectable despite the clear intent that such structures be eligible for protection.

Moreover, other areas of the law support the proposition that opening private property to the public does not affect a property’s private nature. For example, a person granted a license to enter a property is still liable for trespass if she exceeds the scope of the license. Similarly, a property owner does not surrender her right to exclude simply by allowing invitees to enter her property. In addressing the nature of private property open to the public, the United States Supreme Court stated the following in the context of First Amendment public forum analysis: “Property does not lose its private character merely because the public is generally invited to use it  . . . the essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center.” Prune Yard Shopping Center v. Robins, 447 U.S. 74, 81 (1980).

In light of the foregoing, the logical conclusion is that an otherwise private place open to the public is still private and not a “public place” under the Copyright Act. Applying this conclusion to 17 U.S.C. § 102(a), interior spaces of buildings located on private property should be entitled to protection, because they are not located in or ordinarily visible from a public place. Whether a building’s exterior is protectable, however, would depend on whether the building is visible from a public place, such as a road or sidewalk. Assuming the building is not visible from a public place, your copyright entitles you to stop others from taking, displaying, and selling photographs of the building.

Article By

Zachary T. Gordon
Lewis Roca Rothgerber LLP

©2015 All Rights Reserved. Lewis Roca Rothgerber LLP