Canadian Architect

Feature

Morally Speaking

June 1, 2005
by Amy M. Thomas

Surprisingly, there is very little precedent in Canadian law involving infringement of architectural works. Justice Stewart of the Ontario High Court offered the following explanation: “Architects have been more ready to accept the compliment implicit in the repetition of their design than to insist upon a legal right.”i

Buildings, renderings, plans, and models of buildings attract copyright protection. Moral rights are accompanying rights to copyright and include: the right to protect the integrity of a work, such as a building, from distortion, mutilation or modification without permission that is prejudicial to the architect’s reputation. In other words, moral rights may be used to protect a building from unauthorized additions or from being demolished without the architect’s consent.

The Canadian Standard Form of Contract for Architectural Services does not contain any provisions with respect to copyright in the building itself, and has no provisions concerning moral rights at all.

Moreover, only one Canadian architect has ever challenged a building owner for offending moral rights. That architect is Douglas Cardinal, known for his unique organic architecture. He sued the Parish of the Immaculate Conceptionii when the Parish hired another architect to design and build an addition to St. Mary’s Church in Red Deer, Alberta.

Mr. Cardinal brought a motion in Court for an interlocutory injunction to stop the construction. An interlocutory injunction is a temporary, not final, order of the Court. It is sought by way of a motion–a shorter and less involved proceeding than a trial.

Part of the legal test for an injunction is to weigh the inconvenience to each party if the injunction is granted. This is called the “balance of convenience” test. In the Cardinal case, the Court had to weigh the prejudicial effect on Mr. Cardinal’s reputation due to the addition, against the position of the Parish that had construction in progress and had already paid substantial funds for it. Unfortunately for Mr. Cardinal, the Court found that the inconvenience to the Parish would be substantial. The Court also found that Mr. Cardinal’s reputation had not suffered as a result of additions to other of his buildings, including a rectory that was built for St. Mary’s Church in 1975. The Court refused to grant the injunction.

Perhaps, had Mr. Cardinal brought his motion for an injunction prior to construction, the Court may have found in his favour and ordered that the addition not be built at all. Also, had the case not settled, the Court may have found moral rights infringement at trial and awarded Mr. Cardinal compensatory damages for any prejudice to his reputation. It is doubtful the Court would have ordered the addition to be torn down.

The simplest way for an architect to be apprised of any new construction to an existing building or for a demolition, is to require clients, by way of contract, to give the architect timely notice of these future events. The architect may also require that his or her consent be given for any proposed addition or demolition of the building. With consent, the client avoids moral rights infringement. With a notice provision, the architect gets the chance to disapprove of the addition or demolition at a stage when something can still be done about it.

The requirement of notice and/or consent can be agreed to at the same time the contract for architectural services is made. Then, in the future, if the client does not give notice, or obtain consent for an addition to a building, the architect may have claims for breach of contract along with a claim for moral rights infringement making for a stronger case. However, if a contract is too burdensome, the client may not want to sign it!

Generally, clients do not know that although they pay for a building design and have an implied right to inhabit and use it, the copyright and the moral rights in that building remain with the architect unless there is a contract, and it must be in writing, stating otherwise.

Moral rights, unlike copyright, can only be waived and not assigned. Without a waiver of moral rights, the client is not free to change or add to the design to the prejudice of the architect’s reputation (unless consent is granted as discussed above). In other areas of business, such as graphic design, artists rightly charge extra for their design work when copyright is assigned and moral rights are waived. Architects may consider doing this too.

Another moral rights case involves Flight Stop, a sculpture by Michael Snow of 60 geese that hangs in the atrium of the Eaton Centre in Toronto.iii Ribbons were attached to the necks of the geese in connection with a Christmas display. Mr. Snow argued that his naturalistic composition had been made to look ridiculous by the addition of the ribbons. There was evidence that a number of well-respected artists held the same opinion. The Court found the ribbons were a distortion of the work and there would be prejudice to the artist’s reputation. The Court ordered that the ribbons be removed.

It seems unfair that Mr. Snow was entitled to an injunction for his sculpture but Mr. Cardinal was not for his building. This is likely due to the nature of architecture being both functional and aesthetic and also very expensive. The Court must be reasonable when granting extraordinary remedies. An order to halt construction in progress, to tear down an addition that has already been built, or to rebuild a building that has been demolished, is too onerous a remedy to grant. This is not to say that the Courts will not assist architects to maintain the integrity of their works when moral rights are infringed.

On the contrary, if moral rights infringement is established, and the mutilation, distortion or modification has already occurred, an architect plaintiff may be awarded damages at trial to compensate for any prejudice to his or her reputation. If the case is brought early enough, such that a defendant infringer has not incurred much expense and where construction or demolition has not yet begun, the Court may be more inclined to favour the architect, and preserve the status quo by awarding an injunction.

If a particular building is very important to the architect’s career, business and reputation, the architect may want to obtain a copyright registration for the building. There are legal benefits, beyond the scope of this article, to having a copyright registration. Note too, that moral rights as well as copyrights do not last forever. Once the architect has passed away and 50 years go by, a building owner can do whatever he or she pleases with the building.

To preserve moral rights in a building, or at least benefit from these rights, architects should consider including specific terms either in their contracts for service or in a separate contract. For example, if copyright is assigned and moral rights are waived, the client can expect to pay extra for the acquisition of these rights, but then gains the freedom to change or add to the building in the future.

On the other hand, the contract can state that moral rights are not waived and the architect retains copyright in the building. There may also be provisions for notice and/or consent for additions or demolition.

Setting the groundwork to protect the moral rights in a building is especially important in the case of a unique, one-of-a-kind building such as the Museum of Civilization or the National Gallery of Canada. In these cases, an architect will want to have a heads-up that moral rights infringement may be about to occur. With time on his side, and the law in his favour, an architect may well be able to prevent the construction of an addition or a building from being destroyed.

i Hay and Hay Construction Co. Ltd. v. Sloan et al. (1957), 27 C.P.R. 132 at 139 (Ont. H.C.).

ii Cardinal v. Parish of the Immaculate Conception, [1995] F.C.J. No. 1609 (QL) (F.C.T.D.).

iii Snow v. The Eaton Centre Ltd. et al. (1982), 70 C.P.R. (2d) 105 (Ont. H.C.J.).

Amy M. Thomas, B.Arch., LL.B. practices intellectual property law at Moffat & Co./Macera & Jarzyna LLP in Ottawa.




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