Are H&S Code Section 19851 Restrictions on the Copying of Construction Drawings and Plans on File With Local Building Departments Invalid Under Federal Copyright Law?

Under California Health & Safety Code section 19851, in order to obtain copies of architectural or engineering plans or construction drawings on file with a local building department in connection with a building permit, a person is first required to obtain the written “double or dual consent” of two (2) parties to their copying:

”the certified, licensed or registered professional or his or her successor, if any, who signed the original documents and the written permission of the original or current owner of the building . . . .” (All emphasis added).

Health & Safety Code, § 19851(a)(1).

Section 19851(b) requires the local building department to submit an affidavit from the requesting party to both the designers and current or former property owners, seeking the permission of both sets of parties to allow copying the drawings.

The requesting party must submit these request to the prior or current property owner and the design professional, and wait 30 days for their consent.

The statute fails to state what happens if either the owner or designers - or both - fail or refuse to give their written consent to the copying. In that event, the requesting party has no administrative remedy under Section 19851, and may need to proceed in Court to try to obtain the copies.

Furthermore, section 19851( c)(1) expressly limits the use to which the copy of the plans which might be obtained by following its ‘double consent” procedures may be made:

“the plans shall only be used for the maintenance, operation, and use of the building”. (Emphasis added).

Thus, for example, plans obtained via this statutory “double consent” requirement therefore could not even be used as evidence in Court litigation in a construction or property dispute.

Because Section 19851 thus allows both designers and property owners the rights to consent to or refuse to allow copying of the filed plans or drawings, and limits how those plans or drawings may be used, it therefore creates “copyrights” in those documents, as a “copyright” is in essence the legal right to make or authorize the making of copies, or to prevent someone else from making copies of an original or creative work.i

Although the original architect or engineer might have some copyright in the original or creative aspects of the plans or drawings they prepared, a property owner typically would have NO copyright interest in plans created by the design professionals, although he or she may have a limited license to use them for construction purposes.

Property owners typically have NO copyrights in the architectural drawings under the standard form AIA B-series or other Owner-Architect contracts, even if they paid the architect or engineer to create them, absent an express written assignment of copy rights.

However, despite Section 19851 of California state law, Article I, § 8(1) of the Federal Constitution grants to the Congress the power to protect copy rights, and it has done so in a very comprehensive 1976 law, 17 U.S.C. § 101 et seq..

The Copyright Act contains an express State Law preemption provision, overriding all state laws regarding copyrights:

(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright . . . are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.” (Emphasis added).

17 U.S.C. § 301.

As a matter of Federal law, State Law consequently cannot create rights in original copyrighted works greater than - or less than, or even similar to - those allowed by this comprehensive Federal law.

Thus, a State cannot eliminate the “Fair Use” limitation on copyrights under 17 U.S.C. § 107, or create greater protections - or any protections - for copyrights than those allowed by Federal Law and under Section 107 (and the cases discussed below, in the litigation context), as all such state laws are preempted.

The question is not whether state law provides a right identical to federal copyright law, but whether state law provides a right akin to those "within the general scope of copyright as specified by section 106." 17 U.S.C. § 301 (emphasis added). . . .”
”Similar to what we saw with the subject matter inquiry, the "equivalent rights" inquiry thus looks not at the rights Congress actually provided but at the type of rights it has the power to confer. Withholding a particular right is part of the balance Congress struck between the need for copyright incentives and the value in public access to ideas. . . To allow state law protection in this area that Congress excluded from the ambit of copyright thus would run afoul of the "'familiar doctrine' that the federal policy 'may not be set at naught, or its benefits denied' by the state law." Sears, Roebuck & Co. v. Stiffel Company, 376 U.S. 225, 228, 84 S. Ct. 784, 11 L. Ed. 2d 661, 1964 Dec. Comm'r Pat. 425 (1964) (quoting Sola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173, 176, 63 S. Ct. 172, 87 L. Ed. 165, 1943 Dec. Comm'r Pat. 765 (1942)).”(Emphasis added).

Ultraflo Corp. v. Pelican Tank Parts, Inc. (5th Cir. 2017) 845 F.3d 652, 658-659.

Health & Safety Code § 19850 et seq was adopted in 1971, and remains without material amendments to this date. Added Stats 1971 ch 616 § 1.

The comprehensive Federal Copyright Act, 17 U.S.C. § 101, et seq was adopted five years later, in 1976. Oct. 19, 1976, P. L. 94-553, Title I, § 101, 90 Stat 2541.

Thus, Section 19851 could not and did not take into account the preemptive scope and breadth Section 301 of the Federal Act, nor its limitations on copyright protections under the “fair use” provisions of Section 107.

17 U.S.C. § 107 of the Federal Copyright Act contains an express exception to copyright protections where copies are made for certain purposes, labeled “fair use” of the copyrighted materials, including copying for use in litigation.

“Fair Use” of a work does not violate any legitimate copyright under Federal Law.
One such “fair use” of a copyrighted work is copying of the work for use in litigation.
“The complaint alleges the defendants copied RTC's work, made unauthorized revisions in the work, and distributed materials that are substantially similar to it. Complaint Par. 71. However, the only specific factual allegation implicating the Greene defendants is found in Par. 22, which alleges Leta Schlosser, one of Wollersheim's attorneys, copied and transferred the stolen documents to Singer and Ofshe, Wollersheim's expert witnesses.
“Defendants' answer admitted Schlosser and O'Reilly provided the documents to the expert witnesses for the purpose of preparing their testimony in the state tort litigation. RTC does not contend the Greene defendants used the documents for any other purpose. Moreover, RTC has not contested Leta Schlosser's assertion that the documents were sealed, marked "Confidential" and never offered into evidence.
“In these circumstances, use of the documents was "Fair use" under 17 U.S.C. § 107, and not an infringement of RTC's copyright. 10 See Jartech, Inc. v. Clancy, 666 F.2d 403, 406-07 (9th Cir. 1982) (copying of allegedly obscene film to be used as evidence in a nuisance abatement action was "fair use"); 3 Nimmer on Copyright § 13.05[D] at 13-91 (1991) ("works are customarily reproduced in various types of judicial proceedings, including obscenity and defamation actions . . . and it seems inconceivable that any court would hold such reproduction to constitute infringement either by the government or by the individual parties responsible for offering the work in evidence"); see also Hustler Magazine, Inc. v. Moral Majority Inc., 796 F.2d 1148, 1155 (9th Cir. 1986) (" 'use that has no demonstrable effect upon the market for, or the value of, the copyrighted work need not be prohibited in order to protect the author's incentive to create' ") (quoting Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 450, 78 L. Ed. 2d 574, 104 S. Ct. 774 (1984))” (Emphasis added).

Religious Technology Center v. Wollersheim (9th Cir. 1992) 971 F.2d 364, 367.

“Finally, Plaintiffs' federal copyright claim is frivolous. Copyright protection has never accorded the copyright holder complete control over all possible uses of his work. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 432, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984). Under the fair use doctrine, the reproduction and use of excerpts of Sturgis's book during the state court proceedings and the retention of a copy of these excerpts on file at the Michigan Department of Human Services is clearly permissible. See 17 U.S.C. § 107.” (Emphasis added).

Stephens v. Hayes (6th Cir. 2010) 374 F.App'x 620, 624.

Reproduction of copyrighted material for use in litigation or potential litigation is generally fair use, even if the material is copied in whole. For instance, in Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir. 1982), the defendant city council copied five motion pictures by photographing the screen images every few seconds and recording the soundtracks in their entirety. Id. at 405. The city council used its copies in a nuisance abatement proceeding against an adult film theater. Id. at 404-06. The Ninth Circuit affirmed the jury's fair use finding, holding that the city council's use of the copies in the legal proceedings was not "the same intrinsic use to which the copyright holders expected protection from unauthorized use." Id. at 407; see also Bond, 317 F.3d at 396 (holding that the defendant's use in a child custody proceeding of the plaintiff's entire copyrighted work—describing how the plaintiff killed his father—"does not undermine the protections granted by the [Copyright] Act but only serves the important societal interest in having evidence before the factfinder"); Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627, 638 (E.D. Pa. 2007) (holding that law firm's copying of an entire set of copyrighted web pages was justified where the web pages were relevant evidence in other litigation).” (Emphasis added).

Stern v. Does (C.D.Cal. 2011) 978 F.Supp.2d 1031, 1047-1048.

Although in non-litigation contexts the “dual party” or joint “double consent’ requirements of Section 19851 might seem to help preserve the legitimate Federal copyright interests of the design professionals in plans or drawings filed with the City Building Department in connection with a building permit application, they still conflict with and are likely overridden by the Federal Law.

The application of Section 19851, where the existence and content of any such drawings is an issue in pending litigation, and does not further any legitimate or legally recognized - Federally allowed - copyright interest, and serves only to obstruct the resolution of judicial proceedings on their merits.

Such a result would also defeat “the important societal interest in having evidence before the factfinder”.

However, use of the drawings or plans for litigation or as evidence in Court is NOT listed as permitted use of the plans or drawings obtained via this “dual consent” process under Section 19851.

Therefore, even if a person were able to obtain copies of the drawings by this “dual consent” process in Section 19851, the state statute would NOT allow use of the drawings for litigation purposes, even though such uses are permissible “fair uses” under Section 107 of the Federal Copyright Act!

Section 19851 consequently creates greater and new State Law copyrightsii in the plans or drawings - at least in the litigation context - than that afforded to copyright holders under the 1976 Federal Copyright Act and its Section 107.iii

It also creates a new copy right or new statutory right or ability to prevent copying (i.e., a “copyright”) in third persons - the current and former property owners - who themselves did not create the drawings, and who thus would have NO copyrights in them under the Federal Copyright Act.

Consequently, to the extent that Section 19851 attempts to create greater - or any - protections for copyright owners - or for third party property owners - than allowed under the Federal law or the Section 107 ‘fair use” exception to copyright protections in the litigation context (under the case law discussed above), it is likely preempted by the Federal Copyright Act. In whole or in part, and is probably invalid.

Nevertheless, under the Federal Act, local California building department officials may still refuse to make copies of architectural works in their possession without permission of the original architect or engineer who prepared those works, unless the proposed use of those drawings falls under the “Fair Use” exception of Section 107 of the Copyright Act.

As a practical matter, determining whether a proposed use of the drawings falls under the “Fair Use” exception to the Copyright Act may need to be litigated in Federal Court, by serving a subpoena for the records or otherwise litigating the issue as to whether the proposed use for the drawings falls within the protection of Federal Act or that exception to copyright protections.



iBy law since 1990, “architectural works” such as architectural plans or drawings have been expressly protected by U.S. Copyright law.

Also protected as “architectural works” are original elements of the design of a building incorporated in the building itself, even if there are no plans or drawings created for the building.

“An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” (Emphasis added)

17 U.S.C. § 101.

Thus, a constructed building is also protected as an “architectural work”.

Consequently, someone can possibly violate an architect’s copyright by copying the design of the building itself (for example by taking photographs or making one’s own drawings of the building’s original features, and then using those reproductions for the construction of a building with similar or identical creative components), even if the plans or drawings for the building are non-existent or are never copied.

iiA copyright is a right to make and authorize the making - or prevent the making - of copies of a work.17 U.S.C. § 106.