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potential copyright infringment

Dec 17 '08 10 Last Comment
sharkswithlasers
Dec 17, 08 12:51 pm

Greetings. Question for those of you smarter than me. Which is pretty much everyone.

Couple guys working on a proposal in our office for a potential new project. RFP's went out...several other firms potentially responding.

The project: campus dorms numbers Two and Three. AND, the Owner is asking for them to be identical to dorm One, which already has been built and is in use.

The original architect for dorm One essentially got dismissed by the Owner after completion of dorm One. Original architect is a large firm, and while they are not at this moment waving angry guns in the street, I suspect they aren't too happy. The reason I mention this is that I beilieve they will protect any legal position they still retain, and will likely know exactly how to do just that.

See where I'm headed yet? My question: Is it not likely that the original architect will protect their copyright rights? And that my firm or the other submitters are headed for trouble? You can't just cruise in and copy another architect's building.

I somewhat understand the two protections under the law -- one being protection for drawings, etc., -- the other being for "architectural work" -- the uniqueness. While none of the proposal submitting architects have yet to be handed a set of the plans, I don't doubt that the Owner might actually do so. And, drawing or no, the stated intent is to create two more identical dorms, so -- I guess -- the Owner's intent is for the chosen new architect to use the existing adjacent existing dorm One as a handy reference model.

My firm is run by two partners who, while well-meaning, are just not very savvy or even very questioning on such matters.

Doesn't this all sound like an opportunity to get into a copyright mess right from the get-go?

Would really appreciate your thoughts.


 

liberty bell
Dec 17, 08 1:59 pm

A typical architecture contract essentially stipulates that the documents allow the owner a "one time" license to use the design. Dorm 1 may not have had that stipulation.

This is very murky ethical water. Actually, scratch that: it's not murky at all. Unless architect #1 willingly designed a prototype, no one else is allowed to use that design.

IF you decide to pursue the RFP, I would have your lawyer write a very clear statement that this proposal is based on the assumption that the owner has legal rights to re-use a design supplied by a previous professional, and that if the project gets delayed for any reason you still get paid for your time up to that point, whether the project ever proceeds or not. You need to cover your own butt in case there are project delays, even a lawsuit.

But that's just legal. Ethically, I'd not pursue this job, at least not without discussing it with architect #1 first. If they are a large, strong firm you don't want them to be your enemies.

sharkswithlasers
Dec 17, 08 3:28 pm

"Actually, scratch that: it's not murky at all. Unless architect #1 willingly designed a prototype, no one else is allowed to use that design..."

Thanks, Liberty Bell -- that is exactly what I thought;

plus, as I've hinted, I doubt that the partners at my firm have the horsepower to figure this one out without potentiall getting nailed.

Ethically, and for other reasons -- why would any architect WANT to copy another architect's design?

Ledoux's Eye
Dec 17, 08 5:10 pm

LB has correctly identified one potential scenario, but there are others. In the case of universities, public entities and other large institutional owners, the contract language to which LB refers is rarely, if ever, used. LB provides the standard AIA contract viewpoint, but institutional and governmental owners rarely use AIA contract language, at least not without heavy modification. Although only the original architect and university can answer this question for sure, I would bet the farm that the contract signed by the original architect provided that the original architect relinquished all rights to the work (and drawings, models, etc.) they created. Unfortunately, this is pretty standard for these types of client contracts and, as a profession, enough architects sign on the dotted line that this type of thing has strong legs with owners.

All of that being said, LB's recommendation to make an official inquiry (in writing) as to the owner's rights to the original work is valid. I don't think you necessarily need a lawyer to make that request, but you should require the answer to be in writing. Contacting the original architect may be an easier way to resolve the situation. You might be surprised to find they will readily admit they have no rights in the original work and will not be coming after you if you pursue the new project. If that is not their reply, then you have your answer.

The ethical issue in all of this is for each architect to decide. You may feel that copying a building, even if the client has full rights to use the work, is not proper. That is a perfectly legitimate decision, but rest assured that somebody out there will definitely take on the project. You might also consider that the original master concept anticipated a complex of identical dorms and that this project is simply completing that concept, albeit with a new architect.

liberty bell
Dec 17, 08 5:35 pm

Nice comprehensive post, Ledoux, sounds like you speak from experience!

I also agree with everything Ledoux has said, but one clarification: I only think you need a lawyer to review language if you are including it in a binding proposal for the job. If it's just an inquiry, no need for a lawyer, but do make it an "official" inquiry, as Ledoux said, in writing.

treekiller
Dec 17, 08 6:09 pm

if in doubt, consult an intellectual property attorney after the client fails to clarify this point. Since most large RFPs have a Q&A period- might as well submit a question about this...

sharkswithlasers
Dec 18, 08 11:20 am

BTW, it's an interesting read, for those that have not done so, to spin through the Copyright Act of 1990, and then find some cases where it was applied and set as precedent.

I'm right trying to educate myself about the legal side of this issue. There is an incredible amount of confusion on this issue among architects.

One thing I'm beginning to notice. There seems to be two main camps of thought whenever the copyright / intel prop issue comes up. And from the one camp, lots of rationalizing.

ih1542006
Dec 19, 08 1:19 pm

But, in order to bring suit against someone for infringement the design needs to be registered with copyright office. Otherwise, success of winning such a suit is not as good nor is the potential monetary award.

Daily, I encounter contractors and homeowners who think it's no big deal to steal others work. And snicker when I mention copyright infringement.

For instance, I saw an ad placed in a local Mag that had a photograph of a building built by the contractor but no mention of the Architect who designed it. I asked the builder if he got permission to use the image. Of course he didn't think it was needed. And basically laughed it off. If it was my building I think I might not just let it go.

My understanding of the Copyright law, it protects the designer from someone using even an image of the design to drum up additional work without the authors consent.



el jeffe
Dec 19, 08 1:36 pm

no, one needn't register the design to be protected. it just makes proving copyright easier and you can get treble damages.

sharkswithlasers
Dec 19, 08 1:51 pm

Studio43 -- good post. I believe your understanding is correct. And I've run into all of those examples as well.

I feel you pain, but here's my real source of flat out anger... as I go along, I'm FAR MORE frustrated with ARHCITECTS who freely copy the work of others. Again, I'm AMAZED at the rationalization process used to try to justify it. I doesn't surprise me as much that clients and even many builders don't get it, and don't typically care. But architects? I have recently discovered several cases of copying, in an after-the-fact way, by an architect i know. What am I going to do about it? Don't know for sure.

But it's an odd combination of laziness and narcissism and disregard for the efforts of others that somehow seems to make it OK for guys like this to essentially crap on the profession. It's angered me more than anything else I've run into in 10 years of practice.

Anyone else experience this?

Emilio
Dec 19, 08 2:27 pm

this is from here:

When Does Copyright Protection Exist?
Generally, the public believes that an application and a lot of paper must be filed with the government to obtain copyright protection. This is false.
Copyright protection exists in an original work as soon as it is created. Therefore, a copyright exists as soon as you create an original sketch. Today your drawings do not even need any indication of copyright to acquire protection. However it remains good practice to include the statement " Copyright © 2002, by John Doe" on your drawings. It is preferable that John Doe is actually the architect that seals the drawings, however the firm name will also suffice.

The Benefits Of Registering Your Copyright
Architects who take the additional step of registering their work with the Library of Congress are afforded additional remedies if an infringement suit should arise. One must file for registration prior to bringing a suit for copyright infringement. Additionally, registration is also required to collect statutory damages and attorney's fees in an infringement action. The ability to collect statutory damages in an infringement suit is critical because actual damages are often difficult to prove. Statutory damages may only be obtained when the work is registered before the infringement occurs!

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