Architect/Designer Loses Copyright Action Over Invalid Deposit Copy Filed For Registration

Copyright icon by PlenumchamberEvery member of the team should be aware of the  process of protecting the copyright of the drawings.  It’s a short and simple submission to the United States Copyright Office and whomever purchases or retains a copyright as agreed in the contract needs to ensure the protection in order to take advantage of it should a dispute arise. 

We have long been proponents of protecting the copyright interest in the deliverables.  The parties to many construction contracts expend substantial time and effort in coming to an agreement.  The agreement normally includes provisions regarding ownership/licensure of the drawings, or at least it should if time and effort is taken to reach an suitable arrangement over other terms.  Regardless of the arrangement for ownership or licensure, copyright is generally a material portion of the “ownership” clause.  Failure to register the copyright diminishes not only the effectiveness of the copyright provisions that have been negotiated and lessens the legal remedies and rights available to the party vested with the copyright.  You’ve spent money protecting your copyright through contract only to give up the main benefit of that protection under the U.S. Copyright Law by failing to register.

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Are Courts Finally Willing To Entertain Reasonable Liquidated Damages Clauses?

Land sales contract. Sumerian clay tablet, ca. 2600 BC., Taken by Marie-Lan Nguyen“It is true that, when people make contracts, they usually contemplate the performance rather than the breach.” – The Common Law, Oliver Wendell Holmes, Jr.

As the sophistication of contracting parties has grown, Holmes’ comment can be read today as an admonishment as much as it can be understood to express the mindset of contracting parties.  The body of case law on liquidated damages clauses in contracts that’s been created since Holmes first published The Common Law is proof that contemplation of the breach is now a necessary part of the contemplation of performance.

Today’s opinion, Ner Tamid Congregation of North Town v. Krivoruchko (IL N.D., Doc. No. 08 C 1261) is a must read for understanding that in the formation of a contract, the debate is far from dead between allowing sophisticated parties to commingle liquidated damages with the right to sue in a hybrid “election of remedies clause” and a simple Illinois public policy against those clauses.

The opinion from Judge Cole is a summation of the origins and state of the law regarding both the interpretation of contracts and liquidated damages clauses in agreements fit for a textbook.  Similar sets of facts are currently being litigated in courts across the nation given the economic downturn and the bursting real estate bubble. 

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