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Intellectual Property with Form

Twobillionbeats

Hello,

I have a tricky question for you guys. So I was working at an office developing a design for an A-framed roof. I went through several design options and developed a scheme on my own that the principle did not necessarily ask for. Now, I'm working on a new project for a competition and would like to use this same formal language, however more refined and in-detail.

Could they sue me for using the same kind of form that I developed at that office? Honestly, its an A-frame roof with a spin that I put on it. But with these guys, I can't be too careful. They could try to smite me.

But for instance, when people leave Steven Holl's office, many of them take away a very strong formal influences from him to their new offices. Mr. Holl is probably a good guy and does not need to sue people over these kind of things. However other people are not.

Let me know what you guys think...

 
Dec 6, 17 11:14 am

Just tell them and offer to give them a credit in the description?

Dec 6, 17 11:27 am
jla-x

Ask a patent attorney, but my guess...No.   Sue for what?   to sue you need to prove harm.  What tangible financial harm has been done by x using a similar roof as y?  If your previous client was upset, then maybe, but you personally haven't lost anything.  It's also impossible/difficult  to prove that the other person didn't have the same idea.  I've had many many ideas that I later find have been done before...Design is a process of discovery, and one path usually leads to another commonly found path.  The pyramid for instance was invented many times by different cultures with no contact.  The column as well.  The thing with architecture is that it's not a product, and your marketability "supply" isn't really affected the same as it would if you had a product that was copied and sold along side yours.  



Dec 6, 17 11:41 am

I once asked an attorney if I could sue Herzog & de Meuron for a derivative work, and he said (not verbatim) they had changed enough of the design so that he "didn't see it".

I had developed the design for a Nevada firm, but when the derivative was advertised in the NY Times with a full page ad, I called the Nevada principal (after I got up off the floor) and the principal told me he had sold the firm.

I wrote to H&dM and asked they at least admit in writing they borrowed from my design, but they told me if I did not press the matter they would not sue me. How nice for them.


Dec 6, 17 11:56 am
JLC-1

Pictures or it didn't happen

JLC-1

the 3 on the same site?

No, 3 diff sites. NY, LV, NY

The project I did, got planning approval, but did not get built due to the economy tanking and it was relying on robotic parking.

randomised

So you're saying they stole your design? Sorry but I don't see any similarities between the one in the middle, the one you worked on, and the other two. None whatsoever. I do like the H&deM building though. Kind of weird to me, to be putting them all together like this and state you're role as senior designer for all three. Did you really work for Calatrava and H&deM? I don't understand.

Please let me know when you figure it out?

I worked for JMA on 3C4. (the middle one)

randomised

Still unclear, guess the real senior designers of the other two towers would be pissed if they saw this, might even lawyer up...

They perhaps have better reading skills?

randomised

They must have, I just went back to the link and it is all clear (now) to me. Don't know how and why I could miss that. Feel kind of dumb now, mea culpa.

In your defense I added a clarifying text to the "my role". Thanks.

The whole notion that you wouldn't be able to borrow from architecture which came before seems just silly to me.

Dec 6, 17 12:00 pm

which is cool as long as one acknowledges it

The whole notion that someone would avoid acknowledging borrowing from other architecture seems silly to me.

Yes, I think they were offended by my email. Or pretended to be.


We all borrow, all the time. It's what architects do. And it's ok. That's how good architecture happens.

It's also how bad architecture happens.

yes, can go either way, at any moment really

I'd much rather have architects of average or marginal talent borrowing from great buildings and great architects, than trying to be innovative, and falling short. The world would be a better place.

Depends on what you borrow and how you use it. Sturgeon's Law applies here. Then there is the matter of defining "talent".

I stay at home in my pajamas until 10am, I borrowed the idea from Fran Lebowitz

Le Courvoisier

I should sue you for stealing my username.

Dec 6, 17 4:40 pm
randomised

Exactly!

you should hurry before the attorneys all leave for the holidays

Twobillionbeats

for the record dude, I had that username in like 2011 but changed it because its too egotistic

Twobillionbeats

will change, because I can't seem to get away from you dimwits

archinine
Based on your description it's highly unlikely the design would qualify for a patent. It would if it was considered an invention, so if this system you've devised has a unique way of handling loads etc, and of course if such a system has not already been patented. More likely it would fall under copyright as most architectural works do. However it would take an inordinate amount of time, labor etc to research every architectural design for copyright infringement same as it would to file every drawing set for being *slightly* unique. Usually the existing conditions alone create an argument that there is an inherent difference in the design to avoid any frivolous lawsuits.

The real question at hand to OP is less about this design being unique and whether the firm at which it was developed has any specific clauses in their employment contract dictating what can and cannot be done with work performed while on the clock and using their equipment/software. Typically large firms have a boiler plate agreement all employees must sign which clearly states any and all work performed on company time and or on company property automatically becomes the intellectual property of the company. This is completely separate from whether or not this particular iteration was built or shown to a client.

If you are at a smaller firm they usually do not have such clauses though some do. Your safest bet is to read through any onboarding documents you may have signed. If you signed nothing, and especially if there are no monies to be made from this competition entry (I'm guessing zero to very little is the amount), there is likely little reason to think the firm owner will sue you. Even if they had grounds - which they could in that it was done on time they'd paid you for and on their softwares - they don't have any financial gain after paying lawyers to argue such a case as you're not making any revenue from this.

The flip side is that typically there is an additional clause - again from corporate firms who have over time dealt with these sorts of things enough to have most legal topics hammered out - in that you the designer may take copies of whatever work you performed at that office for personal use and promotion within your portfolio, assuming you provide credit to the firm itself.

The real life implication is whether your boss will see said entry out in the wild, whether he/she will even remember this particular iteration, and whether they will care one way or another if you have posted it without their permission and without their firm name mentioned.

At a small firm with no clauses signed - I'd be less worried about being sued and more concerned about creating a very uncomfortable situation with the boss should they come across it. If you have a decent relationship with the person, ask outright - but they will probably at that point want credit. If not, submit the project as is, crediting only yourself and hope they never see it. If you're concerned about being fired if caught, post the company name somewhere (very small) on the final entry.

Also important to note, many new firm owners begin their initial firm portfolio with heavy reliance on projects done at past firms. A simple line such as 'lead/sole designer; completed while at x firm' tends to satisfy all parties. This seems fair - it's a great design, you did it all yourself, ok. But would you have actually completed the whole thing on your own time on your own hardware/software and without any prompt/client/impetus/deadline? Probably not. But you're also probably not going to be sued or fired either.

Best of luck on the competition.
Dec 6, 17 10:29 pm
RickB-Astoria

I agree. Good points above.

Twobillionbeats

Great this is just what I was looking for. Thank you so much. But this makes my life difficult...because I DID sign an intellectual property form, where everything I create at that office must stay at the office. However, if every single element of the design is changed subtly (ie details, formal reading) would they be able to do anything? This firm does not only architecture, but small scale prototyping and products, hence the IP disclosure. I decided I'm going to do this competition how I want though. Most likely, I will not win, however in the advent that it does happen...I'm bringing it to my big firm.

maybe just do your own work now and not worry about it?

RickB-Astoria

Whatever you do regarding it, make subtle changes and incorporate unique design elements in the design. As you know, it is unlikely that the design requirements of two projects will be exactly the same but your design should have design elements specifically designed for *this* project's unique requirements and should have elements uniquely composed for that particular project. While you may borrow your design language, your project should have distinctiveness. Even with houses, with so many variations composed around basically the same general requirements can have so many different variations of design solutions. I think you need to think more creatively than just making 'mechanical' changes. 

If you wish, you could probably have an agreement made for them to officially transfer (through a written and signed agreement) the rights of your original design that was never used with the firm to you. 

What this is called is an Asset Purchase Agreement or more specifically, IP Asset Purchase Agreement. You agree to pay a small sum of money (most likely to pay the cost of the administrative and lawyer costs... which is fair) for that design. Part of the agreement or just out of fairness, recognizing that employer by saying something, "original design was made while working for _______." 

It is likely your employer will be willing to allow the transfer of rights for a small sum such as legal costs for something they don't plan to ever use. It is just a formality you would want to have addressed is a respectful way. If your firm is cool, they'll okay it. If not, that can be more trouble.

RickB-Astoria

I also agree for the most part of what David Curtis said. 

If you only want to make technical changes that don't make discernible difference is design to convey originality between your work at your employer and this work and/or really want to be fully in the legal clear, maybe have a simple IP Asset purchase agreement for the intellectual property for the work you did for that firm that was not incorporated into any project of the firm such as this one to you. Incorporate a copy of those works in the form of Exhibits. You may have other similar sections following the contract such as schedules, addendums, and so forth. Use exhibits for showing copies of the works that is the assets being acquired and do so consistently. Reference: https://www.nolo.com/legal-encyclopedia/how-to-effectively-use-schedules-exhibits-and-addendums-in-your-contracts.html

However, there are simple templates for an IP Purchase Agreement (a particular kind of Asset Purchase Agreement). This would supersede the original employee agreement ONLY to the works that you are acquiring the IP rights to. You should focus only on YOUR work that you did solo and only work that is not used by the firm. 

Another kind of agreement giving you permission to reference all your work you done for that firm in portfolio giving proper credits should be obtained for other works.

In the meantime, do like David Curtis said.

RickB-Astoria

In an ideal world, you'll have an attorney prepare the asset purchase agreement. I can not legally write that up for you. A template that was prepared by good sources that have been vetted by lawyers would usually be sufficiently good enough for this. If there is ANY confusion on how to prepare such an agreement on your part, seek a lawyer to prepare it. It would be a legal document. Based on my observation, I suggest it. You can use a template for a draft but let the lawyer guide you overall. Most if not all the works in question have not been registered so you can't just reference the copyright registration on a database. You will likely want to use exhibits with copies of the particular works. My advice, seek a lawyer for preparing the IP Asset Purchase Agreement.

RickB-Astoria

In short, I suggest you have an attorney prepare the IP Asset Purchase Agreement(s) based on my observation.

RickB-Astoria

To the OP,

A-frame roof.... lets just start with a few points. Your employer does not have any patent rights over A-frame form. They wouldn't get any rights in general to A-frame roof forms because not only has it been widely used for many years in residential and some commercial design.

They may have copyright ownership to your original design if you were a bona fide employee and that this would fall under "works made for hire". However, if you make a new design with easily discernible (by a non-architectural professional such as a judge and that the A-frame language is drawn from what is essentially public domain. There are many works in A-frame design form that your employer can not legitimately claim as unique. You just want to make sure that unique aspects from the work made under employment is NOT carried into your work that they can claim copyright infringement. If the unique aspects are patented technology of another company then you could use that provide you have proof to support an authorization by them allowing you to incorporate into your design. In case of claims, make sure you cover your ass. Make sure it isn't identical or something too closely in resemblance that a non-design professional can not with some ease visually notice the differences. It is not uncommon to have architecture with common architectural language used. I highly doubt there is patent issues as most architectural firms don't do anything with patent offices. 


Dec 7, 17 12:15 am
RickB-Astoria

Unless you plan to have the same design used dozens to hundreds or even thousands of times, copyright is kind of meaningless in this profession because they are usually one off designs. Dealing with contractors stealing a design and making copies and representing it as their own is something that I may prosecute if my own design work was stolen and reused by some f--- stick. At that point, actually registering the copyright is important in order to get the protection you need on the design work.

randomised

OP, first try to win this competition and take it from there. You're bosses rejected "your" design for a reason, maybe it's not that good as you think it is and are blowing this all way out of proportion. Oh, and change your username.

Dec 7, 17 3:57 am
Twobillionbeats

In the past two years since graduations, I've entered 4 competitions. The first one, I won. It got built already because its small scale. The second one, we lost. But we won an AIA Design award for. The third, I lost. But I got invited to collaborate with Harvard on. The 4th one, second place. I can swear I've seen you on Archinect since the days I was in community college before I even attended an accredited program. Maybe if you spent your time working your ass-off, you wouldn't have time to talk shit on every singe thread of this website. So sit down. Think before you post.

randomised

Talking shit? Thanks, or cheers...I see a theme emerging with your usernames, alcohol and already been used, like a wet napkin. I'm sure I've seen a Johnny Walker already on here before. Not very original, once again, hope your competition entries are more original than that.

randomised

You saw onebillionbeats somewhere and got inspired ;)

3tk

Depends on similarity and brand value - design violation lawsuits are notoriously difficult to pursue, some are just for spite (to make the accused spend tie and money). One recent successful one was Louboutin for its red soled shoes (with contrasting upper color).  Can't say architecture can be so branded.  General design ideas are so loose and many forms generic enough it's hard to say the uniqueness is so valuable to the value.

Dec 7, 17 4:40 pm
Twobillionbeats

This is very helpful, thanks guys!

Dec 8, 17 12:07 pm
randomised

You're welcome! Always here to help.

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