Architect’s claim on moral rights denied because of sustainable restructuring of the original building

On 12 April 2024, the District Court of Amsterdam rendered its decision in injunction proceedings in an interesting dispute regarding the moral rights of Mr. X, the architect responsible for the design of the famous office building “The Rock” in Amsterdam, located at business center “de Zuidas”.

Before zooming in on the specifics of the case, we will first provide a legal framework on Dutch copyright law including an explanation on moral rights. Subsequently, we will discuss two takeaways which can be derived from this decision and are specifically interesting for those active in the construction and architecture industry.

Legal framework: Dutch copyright law and moral rights 

Article 1 and 10 of the Dutch Copyright Act (“DCA”) provide that the design of a building may be eligible for copyright protection. In order for a design to be protected by copyright under the DCA, the following conditions must be met:

• Firstly, the design needs to be sufficiently original. This means the design may not be derived from previous designs of others;
• Secondly, the design must reflect the designer’s personality. This means the design needs to be sufficiently creative and include sufficient free and artistic choices.
  
  

It is relevant to note the threshold for copyright protection is relatively low and copyright exists once a work is created in a tangible form. No formal (registration) requirements have to be met. Usually, the person who creates the work is entitled to the copyrights connected to the work. Exceptions to this general rule exist, for example if a work is created by an employee or if a separate agreement allows parties to deviate from the general rule.

Based on article 12 and 13 DCA, the proprietor of the by copyright protected design has the exclusive right to make it available to the public and to reproduce the design. In addition to these exploitation rights, the author is entitled to the moral rights connected to the design. These moral rights are listed in article 25(1) DCA: 

• the right to oppose disclosure to the public of the work without reference to his name or other indication as author, unless such opposition would be unreasonable; 
• the right to oppose disclosure to the public of the work under a name other than his own, as well as any alteration to the title of the work or the indication of the author, insofar as these appear on or in the work or have been disclosed to the public in connection with the work; 
• the right to oppose any other alteration to the work, unless the nature of the alteration is such that opposition would be unreasonable; 
• the right to oppose any distortion, mutilation or other impairment of the work that could be prejudicial to the honour or reputation of the author or to his dignity as an author.

Moral rights differ from exploitation rights in that moral rights are exclusively connected to the person who created the design and protect this person from several forms of misuse of the work. Therefore, only the author is entitled to these rights. Moral rights exist in addition to exploitation rights and can, in contrast to exploitation rights, not be transferred. However, in accordance with article 25(3) DCA, most of the moral rights can be waived, except for the right included in article 25(1)(d) DCA, i.e. the right to oppose any distortion, mutilation or other impairment of the work.

Decision of the District Court of Amsterdam of 12 April 2024 ECLI:NL:RBAMS:2024:2240

The moral rights included in article 25(1)(d) DCA play a crucial role in the dispute between an architect (“Mr. X”) and investment agency WESTINVEST GESELLSCHAFT FÜR INVESTMENTFONDS MBH (“Westinvest”), the owner of the office building ‘The Rock’.

In February 2007, the previous owner of the building, Mahler4 VOF, commissioned architecture firm X to design the interior and exterior of the building. After being built, The Rock was rented out to its first tenant: law firm De Brauw. In March 2012, Westinvest became the new owner of The Rock. In 2014, architecture firm X went bankrupt.

In 2024, the lease agreement between Westinvest and De Brauw ended. Therefore, in order to get the building ready for its new tenants, owner Westinvest desired to make several changes to both the interior and exterior of The Rock. Before starting renovations, Westinvest notified Mr. X – the architect who created the design of The Rock as an employee of architecture firm X – about the intended changes to the building. Mr. X however did not agree with the suggested alterations and argued the intended changes would infringe his copyrights. After initial correspondence, Mr. X initiated injunction proceedings against Westinvest in which he requested the District Court of Amsterdam to:

1. grant an injunction against Westinvest to cease and desist the intended construction activities and the intended use of the design plans of the building; 
2. order Westinvest to surrender all copies of the design plans of The Rock; and
3. order Westinvest to pay all legal costs of the proceedings. 

Mr. X argued he created the by copyright protected design of The Rock and was therefore entitled to the corresponding reproduction rights and moral rights. Mr. X first stated that the design plans of The Rock were reproduced by Westinvest without his prior permission, which allegedly infringed his reproduction rights. In addition, Mr. X substantiated his requests by arguing the intended changes were prejudicial to his honour or reputation and would therefore infringe his moral rights included in article 25(1)(c) and (1)(d) DCA.

In defence, Westinvest argued Mr. X was not entitled to any exploitation rights or moral rights in connection to The Rock. According to Westinvest, Mr. X is not the author of the design of The Rock. Instead, architecture firm X should be regarded author since Mr. X created the design while employed by architecture firm X, meaning the copyrights where vested in firm X. Westinvest therefore argued all requests are inadmissible. 

The District Court of Amsterdam agrees with Westinvest, denies all Mr. X’s requests and orders Mr. X to pay the legal fees of Westinvest.

The Court holds that Mr. X is not entitled to the copyrights (exploitation and moral rights rights) with respect to the design of The Rock for two reasons. Firstly, architecture firm X was the first entity to disclose the design of The Rock without indicating the design originates from Mr. X. This means that, in accordance with article 8 DCA, architecture firm X is considered to be the author of the work and is therefore entitled to the copyrights as the first disclosing entity. In addition, the design of the building was created by Mr. X when he was employed by architecture firm X. Because it was Mr. X’s job to create such designs, architecture firm X is – also in accordance with article 7 DCA – deemed to the author and fully entitled to the copyrights. Mr. X can therefore not invoke any exploitation rights or moral rights.

Moreover, for the sake of completeness, the Court provides that invoking the moral rights of article 25(1)(c) and (d) was unlikely to succeed anyway in this case. This is due to the fact that moral rights are not absolute: it is not possible to oppose changes if the intended changes are not unreasonable or if the proposed changes cause no clear impairment to the honour, reputation or dignity of the architect. Because moral rights are not absolute, a weighing of interests is always necessary. 

In this case, the court considered the intended changes did not violate Mr. X’s alleged moral rights for the following reasons: 

1. an office space of 18.000 m2 instantly became vacant and it is unlikely this space will be leased to a single tenant again: changes need to be made;
2. new (sustainability) requirements will likely need to be implemented over time, which justifies making changes to the building;
3. the intended changes to the exterior of the building were considered ‘minimal and reasonable’ and cannot constitute infringement in the sense of article 25(1) DCA; and 
4. the interior was designed on behalf of law firm De Brauw, which leased the building for fifteen years; the designer could not have the legitimate expectation the interior would remain untouched forever. 

For these reasons, a weighing of interests tipped the scale towards the legitimate interest of the owner to make changes over time.

Conclusion and Takeaways

In conclusion, moral rights can become the subject of complex disputes, necessitating a careful weighing of interests. To avoid confusion over authorship and the permissibility of alterations, drafting clear agreements from the outset is always advisable. In that respect, there are two takeaways to keep in mind:

1. In this case, the court considered it to be important that the legitimate interest to make changes over time was recognized in the engagement letter. Therefore, when drafting agreements between the owner of a building and the architect creating the design, we recommend to include a clause recognizing the possibility to make changes to the building over time. If a dispute occurs and a claim is based on moral rights, such provisions become a relevant circumstance for the court when weighing the interests of the owner of the building and the architect.   
2. A second important takeaway is that not all alterations to designs can be opposed based on article 25(1) DCA. In this case, the court referred to the Jelles/Zwolle-decision  in which the Dutch Supreme Court held demolition does not constitute impairment. This means article 25(1)(d) DCA does not grant a right to oppose demolition. However, if the to be demolished work is unique and no copies exist, the owner of the building may be asked to document the work or to give the author the opportunity to document the work. Therefore, demolition of a work does not prompt the right to oppose, but it could prompt a right to document the work before demolition. 

[1] Dutch Supreme Court of 6 February 2004, ECLI:NL:HR:2004:AN7830 (Jelles/Zwolle).