Thanks to California’s sunny climate and culture of outdoor living, many California residents enlist landscape designers to create the perfect outdoor space. These outdoor living amenities are often widely shared on social media sites like Instagram, Pinterest, and Facebook, and publicized in magazines and advertising circulars. Thus, landscape designers should know their legal rights when others copy or take credit for their unique designs and landscaping plans.
First, landscape designers are entitled to copyright protection in their landscape designs i.e. the technical landscape plan or even a rough drawing of the site design. Because these plans reflect the designer’s creativity and unique arrangement of elements for the site, U.S. copyright law allows landscape designers to own and protect the copyright in their plans. Therefore, the landscape designer /copyright owner has exclusive control over the reproduction of their plans, distribution of copies, preparation of derivative works and even the display of their copyrighted design.
While many landscape designers are hired by a homeowner, contractor, interior designer, or developer, the landscape designer retains the copyright ownership in their own plans. Though the hiring party many give some input or ideas about the landscaping, it does not mean that they can claim ownership in the landscape designs. Unless the contract between the hiring party and landscape designer says otherwise, the landscape designer ultimately retains the copyright in their original landscaping plans. Thus, it is important to consult an attorney to ensure that any contract between a landscape designer and hiring party clearly establishes that the landscape designer retains the copyright in their original plans and designs.
If another party has copied a landscape designer’s unique plans, the designer can assert a claim for copyright infringement. Copyright infringement is the unauthorized exercise of the copyright owner’s exclusive rights. For example, perhaps a landscape designer has created a landscape plan for a homeowner’s backyard. Then, there is a falling out between the homeowner and landscape designer. Subsequently, the homeowner hires another landscape designer to copy and execute the original landscape designer’s plans. This would be a clear violation of the original landscape designer’s copyright ownership and the original copyright designer could assert claims for copyright infringement.
To evaluate copyright infringement claims, courts will look for either direct evidence of copying, or circumstantial evidence of copying, meaning the alleged infringer had access to the copyrighted landscape design and there is substantial similarity between the two designs. To evaluate similarity, courts typically determine whether the “total concept and feel” of the two designs are substantially similar.
While copyright protection begins at the moment of creation, a work must be registered with the U.S. Copyright Office in order to bring a claim for copyright infringement. This means that the copyrighted work, e.g. the technical rendering of the landscape plan or drawing of the landscape design, must be properly registered before a landscape designer is able to assert their claim.
Passing Off the Work of Another As One’s Own
In addition to copyright protection, landscape designers can protect their original work under the Lanham Act. The Lanham Act provides a federal cause of action for unfair competition, meaning that a person is prohibited from passing off work done by another as their own work. In other words, a person cannot cause confusion to the public by providing a false or misleading representation that a particular work is their own. While copyright protects against copying of the design itself, the Lanham Act affords protection to landscape designers when their design is shown, but without proper attribution.
With the popularity of social media sharing, an accidental violation of the Lanham Act can be easier than one may think. Simply posting a photo of a worksite or completed project without properly affording credit to the landscape designer could open up the company and/or social media user to significant liability. Specifically, other social media users could see the post and believe that the space was designed by the company that posted the work instead of the true creator: the landscape designer.
Thus, it’s important for companies to provide proper social media credit to landscape designers to avoid legal ramifications.
Finally, California law also affords protection when a company or social media user posts a landscape designer’s work without proper attribution. Like its federal counterpart, California Business and Professions Code §§ 17200 et. seq. protects against unfair competition, which includes deceptive, untrue, or misleading advertising. This means that posting, publishing, or sharing the work of another without providing proper credit, such that others could be confused as to the true creator of the work, could subject the company to further liability under California law.
In summary, it’s important that landscape designers, as well as those working closely with landscape designers, understand the legal protections of their work. For designers, it’s important to establish and protect copyright ownership in one’s own landscape plans and designs. For companies posting photos of a landscape designer’s work, it’s important to afford proper credit to the landscape designer and carefully consider whether such post misleads the public as to the creator of the work.
For all parties involved, it’s always best to consult an attorney who can help navigate the legal ramifications of landscape design. We are your Orange County trademark and business attorneys here ready to help.