Architect's copyright in remodeling

The moment an architect designs a building, copyrights arise. These rights can be divided into exploitation rights and personality rights. Clients and property owners should be well aware of the possible consequences of the architect's copyrights. Especially since the personality rights can get in the way of renovating a building.  

Among other things, the architect's exploitation rights ensure that what the architect has designed may not be disclosed or reproduced without the architect's permission. For example, these rights ensure that if an architect designs a building on behalf of his client, the client may build only one version of the building and only the client may do so. What is and is not permitted always depends on the license granted by the architect. Incidentally, it is also possible for the architect to transfer his exploitation rights to the client by written deed. The exploitation rights then no longer rest with the architect, but with the client.

Not Transferable

In contrast to exploitation rights, personality rights (also called moral rights) are not transferable. By invoking his personality rights, the architect can take action against, among others:

1) A disfigurement, mutilation or impairment of the building designed by him, if it may result in damage to the architect's reputation.
2) Any other alteration of the building designed by him, unless such alteration is of such a nature that opposition by the architect would be contrary to reasonableness.

Depending on circumstances

Whether an architect's invocation of his moral rights is successful always depends on the circumstances of the case. For example, the architect is more likely to be able to invoke his moral rights in the case of a major renovation than in the case of a change that has little effect on the original design of the building. Another factor is whether the property owner had the ability to remodel the building while retaining the essence of the architect's design. The demolition of a building, by the way, does not fall under the protection of personality rights. Nevertheless, situations may arise in which even the demolition of a building is not allowed without question.

Naturalis, KMPG and ministry

Disputes between an architect and building owner are certainly not exceptional. In recent years, for example, legal proceedings have been conducted by the architect of the Naturalis in Leiden, the architect of the former building of KMPG in Amstelveen and the architect of the former Ministry of Economic Affairs in The Hague. These proceedings always centered on the question of whether the architect could oppose a renovation of the building he designed. In the proceedings brought by the architect of the Naturalis building, a settlement of €1.5 million was reached (to be transferred by Naturalis to charity). The parties proceeded to do so after the district court issued an interlocutory ruling in which it largely found in favor of the architect. In the other two (interlocutory) proceedings, the architect was ruled against.

Renunciation

Legal proceedings can be avoided in many cases. Indeed, the architect can waive the right of personality mentioned under 2) above (the right of personality mentioned under 1). Therefore, when an architect is awarded a commission, it is advisable to make use of this waiver option. Furthermore, it is advisable to have the exploitation rights transferred.

Consent

If at any time plans arise for a renovation, it is always advisable to determine whether, and if so which, personality rights have been transferred. Especially when it appears that the architect has not waived any of his moral rights, the consequences of a renovation on the original design should be carefully examined. Sometimes it is even advisable to approach the architect in order to get him to agree to the renovation.

Preventing Misery

As noted above, personality rights are not transferable. In principle, personality rights lose their effect after the architect's death, but sometimes only at a later time. Given this long duration, personality rights will often still be in effect when a building is remodeled. This should be taken into account. Early detection of the personality rights and good contractual agreements can prevent a lot of (financial) misery.