i have been hired to provide design services for two houses. The first house is a renovation. it is a sprawling ranch, and the owner wants a couple of the wings demolished so that the house is more compact. He will move the house over to one side of the property. on the other side of the property, he will build a new house. the renovation is fine, but there may be a problem with the "new house."
A few years ago, he built a new residence which was designed by an unlicensed designer. now, he would like to take that design and construct it on a new site. he believes that mirroring the house and making some small changes to the elevation makes it a different house. i'm not sure exactly what to tell him ... but my experience and gut reaction is as follows:
the design remains the intellectual property of the designer, even though he is an unlicensed professional. you cannot build this house again without his permission. you would have to pay one of us to modify the construction documents. i would love for it to be me, but I don't want to open myself up to that kind of liability, because i would like to be a real Architect one day. (it is a good amount of work on my part, because the original drawings were hand-drawn and i would need to draft them into CAD) i would suggest that you obtain the original designer's permission in writing for you to have another designer ( namely myself ) make these changes and put together a new set of construction documents. this would absolve the original designer of responsibility if the house ever fell into the earth, it would protect you from having him come back in six months and demanding you pay him for using his design again, and it would protect me from violating the intellectual property of another designer.
plus, it is wrong to use this man's work for my financial gain without his knowledge or approval. agree?
Have you done residence drawings before? I don't see any reason that you can not reiterate a home that an owner wishes to do again with minor changes. The real question is why doesn't he get the previous drafter to do the second one? He probably doesn't want to pay that person again, thats where you come in. How large is the house(SF)? I did this for a friend while in undergraduate school and we mirrored and did everything you are explaining. 9 times out of 10 the original drafter copied some other spec home to start off with. I really don't buy into this intellectual property crap. If I draft something, it's my work, regardless if it was based on a previous built home. If the home looks alot like other homes, i wouldn't sweat it.
Well --- this is seriously enough ,but maybe a long shot ; but if you anyway mall a set of plan drawings into a 3D drawing, did not build the actural spects. as you put it together of frames instead of ply boxes , then you would renovate it so much cheaper it would be another house case you changed dimensions --- but heck, you might do that anyway , if you realy would call it your's.
Then about credits ,well is that so difficult ? How much help was the original blueprints, are the concept in fact the same but a few cheap modifications, maybe ruining the design , ------ guess we newer know how things would work with just a bit honestym atleast I proberly wouldn't spend the money ,those the newthinking did not return, for a trial why shuld I against a thief, that alone are punish enough being one.
Let me say it in a different way --- you already talk about a 3D drawing ; digitize it and generate a 3dh framework for it , no one would say it is the same design, you build it so much easier and so much cheaper, and can get a discount on all the sheet materials you use.
1. You can document the exising house - that's not a violation of copyright. And if he wants to copy the house and not the plans, then he should really be surveying the built house, shouldn't he?
2. How old are the plans? I am curious, given that they are hand-drafted. If they are 20 years old, the guy might not even be in practice anymore.
3. I would be hesitant to have a non-architect draw up plans that aren't even going to be reviewed by a licenced architect, much less approved by one. This guy is sending up red flags to me.
4. There was an article cited in archinect's news feed about a year or so ago where a developer got a set of plans from a Architect's disgruntled ex-employee, flipped the house, "changed a few things" and then got caught as a friend of the architect drove by and asked him about his latest house - the stolen one. "Minor Changes" are just that - minor. The developer got sued and lost, and I think the judgement was in the area of $6M. So, you could always find that story, print it out and leave it in the guy's mailbox.
5. You should suggest to the owner to contact the designer. Its the right thing to do even if it weren't legally required (which it almost certainly is.) Plus, if he blows it off he's probably not a very good client anyway, and you just saved yourself a lot of aggrivation and time by the mailbox waiting for your check.
I don't get it - the site will be different, how can you just mirror the house?
it probably won't make sense on the site. that seems more of a problem to me than the intelectual property issue.
Gillespie, the appropriate moral foundation is that you should not copy another's work without appropriate compensation. If the architecture field were not so full of steal'n'stamp whores willing to purloin the work of their peers & predecessors without paying, we'd all 1) control our artistic expression & documents more thoroughly, 2) limit liability as well as damage to reputations incurred through inappropriate re-use, 3) earn a lot more money. Do unto others as you'd have them do unto you.
For the moment, this leaves the very ample legal argument untouched, although crowbert illuminated it briefly. Don't touch this one with a ten foot pole unless client is willing to get permission (in writing!) from the former designer or else allow you to do so, and pay the designer a (probably minuscule) royalty for re-use of his or her work.
In fact, you'd do yourself a favor to pick up the phone and call the former designer to see if he was paid by his former client. My experience has been universally good in this regard. Usually, they thank me and give me standard rates for copyright release (if they're part of the "plan industry" business), or they thank me for asking but say no, and I avoid a nasty problem. If they never thought about it before, we can open a dialog on a fair exchange.
A more significant problem I've avoided this way was learning of clients who left a trail behind them littered with the detritus of unpaid architects and other designers. Has your client had enough respect for the original designer to seek permission before asking you to use those instruments of their service? Will this client treat you the same way?
Also, ask every client to sign an agreement that assigns any and all of "their" sketches to you and to protect, defend, and hold you harmless against any copyright claims that arise from your use of same; if they balk, it's a *real* bad sign. I knew a designer back in the 1980's who paid nearly $100,000 to a plan publisher as a settlement for using what he thought was the client's crude plan sketch; actually the client's high schooler had traced it out of a plan book.
Never give away your ownership in your designs for free or even for cheap if you think well of your profession.
To aid your understanding of this subject, check the outstanding pdf download of a 72 page manual titled, "Copyright Basics for Home Designers and Publishers", by intellectual property attorney David Bennett (undergrad degree in architecture) at Coats and Bennett PLLC - link
This isn't just about money. Copyright protects you from theft of your ideas expressed in your deliverables by granting you, as the creator, legal control of their use and by protecting the design itself. Remember from history, the creators of many of the monuments most revered, particularly in Greece, were slaves, themselves the property of landholders. By not asserting control over our intellectual property, we willingly submit to those who would willingly enslave us.
I don't think you will find many followers here --- if it is a spetacular or unique building , then everyone will think " now if I designed that, I would become famous, so if I one day hit the front pages with something unique and as spetacular as this, -- then ofcaurse no one must be allowed to copy it, and doing it without mentioning my name, now no crime are vorse than that"
"Intelectural property" seen from the architects point of view is that of the looks of a building, the expression, the unique house, how the walls and floors are situated to deliver a building. This one-eyed perception then allow architects to "borrow" what they don't think is architecture without leaving a single word of credit ; quite a plesant arangement like how you see with 3dh ---- sorry to mention 3dh but a crime don't become less a crime if just more criminals back it u ; in this perspective it is my claim that develobing a new building method, that method is just as much an intelectural property as any first price in an architect contest.
What we can reconise among architects , is that copyright and intelectural property , call for a double agenda ; with 3dh architects and engineers since it was published has been fighting it with all means, but as soon a fame architect or engineer ; one of their own, "borrowed" it with more or less understanding of the technike , sometimes even destroying it with clumpsy attemts , then copyright or intelectural property count nothing , even the method been published and documented, -- as long as it is a fame Sir engineer or an arogant academic, then copyright or intelectural property simply don't exist., and what you see, is that in the name of new spetacular images and emty hull buildings, robbing , stealing of intelectual property are allowed without even a line of credit for the develober of a new building technike.
In short words --- in architecture halve an hour throwing a sketch is justified to allow both copyright and ownership of "intelectural property", but if the creative process aim higher to deliver something groundbreaking as a brand new building method and the publishing of that is followed by hundreds of various examples --- then that yield no response as towerds intelectural property , not at all --- in architecture not being one of us, this is engaged as pray, and like everyone know, a thief allway's are looking for a bad exchouse ,both lies and chikane, bullying are allowed to allow the fame stararchitects rob what they can't figure out themself.
What realy have been a surprise for me, promoting 3dh just as a happy messeage, as a happy sharing of halve a life's work ,finaly delivering , is how much hate and arogant joy of evil doing ,has been the response.
Strange proberly not, followers are allway's willing to sacrifise honesty, but their reson, I newer figured out that, how to laugh while you knowingly are harming some nice guy, no realy I don't understand that drive.
The present entry, begun by gillespie, has nearly twice as many replies, though it's based on just one designer asking advice from peers.
This is said to be one of the fastest growing areas of law practice. Back in the early 1990's when the US had joined the Berne Convention and passed laws specifically applying copyright to architectural designs, I thought that it might take a couple of decades (or more?) for all the consequences to shake out in the courts so the various stakeholders could reliably predict their respective boundaries. This is beginning to hold true, and it's helping provide better order to the marketplace for architectural and design services.
In the 1980's when I began practice, it was commonplace for clients to come to a good designer, get a design, then "disappear", often without paying, in actuality taking our designs to inept drafters who would draw them for a fraction of our fee. (& yes, sometimes these "drafters" were licensed as architects and had a stamp.) We had to be hyper-aggressive about getting money up front and demanding payment before anybody walked out our door with copies of our sketches, and even then we sometimes saw buildings suspiciously similar to our schematics, but had little or no recourse.
Now, with protection for our design, as well as our drawings, we can enforce more effectively. This makes us more likely receive payment for conceptual design services and able to enforce control over subsequent phases more effectively: fewer bastardizations of design intent by some inept drafter or incompetent builder; fewer clients who renege on a final payment, figuring we'll never dare enforce it out of fear of a mega-counterclaim.
My dos cents (from one villa person to another)-
Propose designing and executing your own idea-
After expressing to the client the potential hassel of persuing the old design you may have landed yourself a fresh slate for designing your own unique piece of architecture.
If that doesn't fly I can speak from a current project in an office im working at. Same senario except the old designer is a "consultant"= calls the office 10 times a day requesting drawings and making suggestions and being annoying. The old desing was in main, the new desing is very different but the "ideas" the client like from main are being manipulated on the new project to change the program. But the ideas constitute the need to gain permission from the old desinger. All the old drawings were hand, and we modernized the whole design, but it doesnt matter. ideas are ideas.
a lot depends. morally and ethically, i can't see how 'flipping and minor changes' doesn't work out to be the same as stealing. it's intellectually lazy besides.
legally, a lot depends. the original designer, architect or not, owns the copyright on the design. however, if there was an agreement assigning the copyrights to the developer, you're ok. if not, you're open to a lawsuit by the former designer. you will have basically stolen his design.
your idea to get permission in writing is good. if you get it, i would call the designer directly to see if he actually signed the document (you never know what kind of forgery could be done). if it's all up and up, go for it. if not, risk turning both houses down. you'll be much happier in the long run...
laru, you hit it on the head. beyond the immorality of stealing (aside - imagine We have to steal from a non-architect?), it's indeed intellectually lazy. that's why rob(E)'s legit response, to "Propose designing and executing your own idea", won't likely fly with this client (even though it's a good idea, rob(e)).
in other words, i lack confidence that a lazy-minded client will respond favorably to an activist architect's proposal (unless architect offers to do it for nearly free, but that's a different thread).
gillespie, hope these responses don't make you feel totally trashed (let's see: potentially an immoral, illegal plan pirate, who has to steal ideas from vo-tech drafters and take on no-good clients; wait a minute is that a mirror?), all because you asked in all honesty for guidance.
does our profession comment on at least some of its members? the real question is, how'd we get here?
I am an architect in Atlanta. For the last twenty years I've specialized in residential work. It seems that this town is run by the builders. At least they seem to think so. They and their homeowner clients make no bones about telling you they are calling every architect and designer in the phone book to get fee quotes. They will not hesitate to demand that you redraw someone else’s work for them. In fact they get quite indignant if you refuse.
I recently settled a copyright infringement case for just under $100,000.00. A builder whom I had been working with for many years called me up one day and asked if I could send him some ideas for cluster plans. I faxed him the cluster stock plans that I had. A week later he called me back wanting a price to make some changes to the plan and build it twice. I quoted him $2,500.00. Cheap right? He scoffed and said he could get a whole custom design for less then that. I lowered my price a bit and he responded “I’ll just get my partners “drawer” to redraw it (in Georgia they call them “drawers” not draftsmen). I informed him that I could sue him for copyright infringement and he said “not if you change it enough” and hung up (sweet guy). Four months later I called the county permit office and got a list of his building permits with addresses. Drove out to the first most likely target and Bingo! It took me a while to decide on a good copyright attorney but I did find a one.
In fact his partner did have someone who would copy it for less. They did the first house for four-hundred and sixty dollars and the second one for under three-hundred & fifty bucks. I would have sued then too but someone had already beaten me to it. They are long gone.
Which brings me to another question, Todd_ufl, what’s up with your attitude (see above)? Do you have any stock plans I can look at? How much equity do you have in your home? What is your phone number and address? My attorney would really like to meet you.
I can tell , that it is not enough to brag about a buildings cost of only a third and strangely the promises of a stronger housem a rebuildable structure spare frames at any time even in a 100 years is no good buisness compared staying with the old technikes and the old designs.
That make me very sad, othervise I would love to challance ,deliver something better a mountain of money , it seem ; from what I read there shuld be plenty need ,othervise.
But this mean that my designs are not good enough sad ,--- they othervise work much better compared copyright ( allow me to spell it with small caps ) , see with my designs an entrapanour trying to copy them, would be in serious trouble , as that would requier more than just a copy, while what count are the numbers, the numbers to feed the water or laser cutter --- sorry I don't get it -- with a new architecture, new methods and a different fabrication of the houses basic structure, you could replace that hill with a mountain of money.
GMARCH, if you've noticed gillespie has not bothered to answer any of my first questions. Which leads me to believe the "house plans" gillespie was referring to were probably a simple set of cookie-cutter plans similar to that found in a magazine at the grocery store. Nothing mind blowing but maybe i am wrong. But, maybe they are some monstrosity set of plans which require three engineers to review and seal. I don't know but my first impression was "no".
My first guess was that it may be similar to a situation I had while in undergraduate school a few years back. In which a friend gave me a chance to draft something "real for a change" over the summer and it just so happened to be a basic set of plans(like 4-5 sheets or something). And I have ran across that exact floorplan in several magazines over the past five years.
I honestly did not think gillespie had been offered to re-draft a 20MIL bel-aire mansion but we don't know till he responds.
Did not realize I vented any attitude. Just said, feel free to disagree. I'm not really sure what anyone here is talking about except for their own personal instances. No one will know if gillespie got his question answered until he posts again. And feel free to waste your attorney's time and contact me, I have nothing to hide. Maybe you're a GA Bulldog fan and might be mad i'm a FL GATOR. it's only a joke, don't take it personally.
Todd
“I really don't buy into this intellectual property crap. If I draft something, it's my work, regardless if it was based on a previous built home. If the home looks allot like other homes, I wouldn't sweat it.”
If that isn’t a bad attitude I don’t know what is.
With that statement you declare that you have absolutely no regard for the rights of the works of others. A great many people make their living designing what you arrogantly refer to as ”those simple sets of cookie-cutter plans similar to that found in a magazine at the grocery store”.
So, if it’s some ones work that you look down on then is it ok to steal it?
A great many people make thier living by designing “those simple sets of cookie-cutter plans” and they are currently suing the pants off of people like you who violate their copyrights. Donald Gardner, Bill Farmer, Frank Betz, And Mike Garrell are just about all using my same law firm, so keep it up.
If you don't beleive me then call them up and ask them.
And by the way, if I catch anybody else stealing my work it will not be a waste of my attorney’s time I assure you! I’ve spent the last thirty-five years of my life learning and developing my design skills, building my business and marketing my work. So watch your ass!
Well GMARCH, I just noticed I was your first post so I must have really pushed some buttons with my disagreement with intellectual property or you have really been waiting to tell someone about your 100K settlement. This is a discussion forum and everyone is entitled to their opinion. I guess you are preying the boards and looking for people to sue and not discuss topics. Why not share some of your 35 years of experience and not ask people how much equity they have in their home. Perhaps you and your new found lawyer friends can laugh it up how you search for old clients to sue. Not really what I would waste time with but to each its own.
My apologies to gillespie for his thread being hijacked.
i've been busy over the past couple of days and apologize for not updating the discussion in a while. so, if the thread has lost its way, it's a bit my fault.
from what i can tell, the plans are not cookie cutter. the gentleman who designed them does custom house plans. i can only assume that the work is his own. the drawings were done only a couple of years ago - he just prefers to draw by hand, i guess. based on the area that the house was built in, i would guess that its that its a half-million dollar house, if sold on the market. roughly 3500 sf, two-story brick with some architectural salvage incorporated into the exterior. i have been to the original house in question, and the fit and finish is quite nice. pella architectural windows and heart pine floors, etc ... none of these details show up on the drawings. they are pretty bare bones compared to the houses i have worked on professionally: plan, elevations, wall sections, foundation and site plans. very little interior detailing.
i don't believe the client is malicious or duplicitous. he is just looking to save some money up front by having a grad student draw the plans instead of a more established professional.
i dont really think that the thread has been hijacked. this is one of the most interesting discussions i have been involved with in a while. we all recognize that the totalitarian vision towards design of architect's past ( wonder who that might be ) has fallen by the wayside, and that, argueably, the relevancy of the architect has been lessened in the minds of the average american. so it comes as no surprise to me that when the average person, one not familiar with the design + construction industry, engages an architect for the first time, they are surprised to learn that they do not "own" the drawings that are used to build their building. while that is not completely applicable to my situation, i think it is a problem of public perception. and, judging by the variety of opinions expressed here, a problem of perception within the industry as well.
we should own what we produce. but lets be realistic, in a digital age it is easier and easier to steal. i have no qualms with downloading music or a program here or there. i know its wrong, but i could tell myself its a victimless crime. of course, however, it isn't. it is professionally courteous to contact each other if a client is trying to circumvent "the system", not to frustrate them, but to let them know that the work we do is valuable and that they would be equally upset if someone stole from them to save a couple of bucks.
$0.02
for me, i'm working with the client to receive approval from the previous designer - in writing. oh, i hope my spelling hasn't been too terrible - this has been a stream of conscious type of entry.
Ålease aææow me to explain, that my contribution all, are made in the spirit of evolvint the industrie, not allowing it to stay in yestoday, maybe realise that digital has a lot of applications among one are the future.
Please allow me to explain, that my contribution all, are made in the spirit of evolving the industrie, not allowing it to stay in yestoday, maybe realise that digital has a lot of applications among one are the future.
It sounds to me like Gillespie is picking up quite a bit of good information from this thread.
One benefit of my thirty-five years of experience is that I’ve learned a few important things to protect my clients and myself from getting sued, as well as stopping those predators who try to take my property without paying. In my opinion this does address Gillespie’s question. What this friend of Gillespie’s is asking him to do is a violation of someone’s property rights, although neither of them may have realized it. These rights are protected by the federal copyright act.
Todd, what you wrote demonstrated your willingness to violate that law. By doing this you are also undermining the entire profession, our fees and the inherent value of our design work. Each time you tell a prospective client that you are willing to do this you damage our ability to make a living practicing this profession. You are in effect cutting your own throat. If you tell a home owner this he will probably tell ten other people. If you tell a builder this he will tell twenty people and a realtor will probably tell a hundred in the course of his career.
This is my first posting this site. Many practicing professionals that I know are frustrated with just this sort of nonsense from members of our own profession.
I am usually to busy to take time to hang out on these forums or to drive around with my lawyer looking for law suits. If you re-read my first posting you will see that my lawsuit was the result of this builder blatantly getting in my face and stealing my work. If someone broke into your home and stole your property would you not try to have then prosecuted under the law?
After all of these years of experience, I intend to make a decent living in this profession, even if it means taking necessary action to stop the pirating of my deliverables and my designs. Trying to negotiate fees with people who believe that it’s “ok’ to steal someone’s work and just take it to another draftsman is a very frustrating joke.
Perhaps if we all stood up for ourselves we would be better off.
Then emagine you are are a guy, with a free develober copy of AutoCAD, who spend his life as an artist, develobing fancy new building methods, share them openly and just ask for the credit being the method used, that my name are assigned the Design, makeing it possible so to say.
gillespie, you're doing the right thing in working with your client to secure permission from the original designer.
if the old guy feels any concern over not getting a new commission from "his" client, there's actually a decent article on "rejection" in residential architect this month, for your edification or sensitivity if you will, not necessarily to show him. however, he's probably fairly mature & won't mind as long as he's treated honorably and offered some compensation (see my earlier post); believe it or not, some folks will may ask you to share your derivative work "backwards" with them as they share theirs with you — with a little caution, this can work, too. (of course, some are porcupines, but these just warn you ahead of time so you don't get stuck with barbs in the form of summonses fired at you later!) most designers respond in kind when treated right.
i've made good contacts over the years among licensed architects
as well as among some of the better "designers" and learned from both. (i yield nothing to the training and internship that set me apart as a registered architect, as opposed to those who did not choose this path, though i respect the abilities of many of them, but that's another thread.) by treating him fairly, you may find someone who can be of occasional value as a future contact peripheral to our field, if nothing else. (network!)
i Do "give a crap" about somebody else's property rights! and that's what intellectual property is. unlike real estate, we can create more of it, but it doesn't stay our property forever. after a few years, or if we don't act to protect it, we can lose our ownership to the public domain, where it's legal, ethical, and probably moral for others to take & use without paying the originator.
confusion over this and related matters lets some less knowledgeable people believe erroneously that they "own" a design because they bought a plan book or because an architect designed a building for them. there is no excuse for educated professionals to hold obstinately to such beliefs or to rationalize reasons that enable their choice to steal designs & drawings of others (no, not even if you drafted it yourself). we can all help educate clients for their protection & ours, but, unfortunately, we need to educate many members of our own and related fields, as well. those among our peers who refuse to learn by choice remain professional ignoramuses.
My question concerning "intellectual property" is where does it begin and where does it end. If someone can answer this, then maybe I would change my mind in regards to it. I think the way some our using this term is a bit overboard. Id be willing to bet that over a hundred architects or drafters claim to "own" the exact same plan on numerous occasions. So, who is the owner. You I guess, but along with a hundred others. That's the "crap" I don't buy into. I appreciate everyone's input and feel free to continue bashing me the rest of the afternoon. But, please answer the question above; where's the line?
It is almost impossible to stop violating of copyrights and intelectural property, --- the only way I see, is to educate those who do, how bad a buisness this realy are.
There are enough arguments for that, please fill in ....
The documents are "instruments of service". If you google it you might see something like this:
Instruments of Service: Clients hire design professionals to perform services that are expressed through 'instruments of service,' such as drawings, plans and specifications. Those documents are not products or 'works for hire,' and the client does not normally buy or own such documents. Under standard contract forms, the design professional retains the design, the copyright of the documents and the right to use the information contained in the instruments of service. The client usually has the right to retain copies for information and reference in connection with the use and occupancy of the project, but it is clearly stated that the documents are not intended to be suitable for reuse by the client or others for modifications to the project or any other project. If the instruments of service are transferred, the design professional should insert a provision that disclaims any responsibility that might exist for any use beyond what is intended. The provision should also commit the client to take sole responsibility for any future use of the documents and indemnify the design professional for any claims, costs, losses or damages resulting from any future use or modification of the instruments of service.
To make this about as simple as possible: The guy owns the house, the designer owns the directions to build the house.
I have had the occasional client demand that I remove the section of my contract that refers to intellectual property rights and assign all of the rights to the drawings to him. I've often thought about this issue and I've decided the standard response to any such request should always be "Hell No".
To do this would remove the biggest protective clause in your contract. It may even make the rest of your contract hard to enforce. How can you deny them the use of drawings that do not belong to you in the first place? I’ve had them argue “I paid for em they’re mine”. Do not fall for that one! You would be screwed, severely.
You would also be open to copyright infringement action by said client should you ever do anything that he considers similar to “his” work. This law be tricky stuff, yes? I consider anyone who would ask you to do this to be dangerous to your practice.
I once had a client get ugly when another five-over-four I designed was constructed six blocks from his house.
A friend of mine made this mistake and the client did come back and threaten to sue him over a similar 5’x8’ bath room. Yes, there are people like this out there, so beware.
Dangerous clients would be a good subject for another thread.
A say all of this not just to scare you youngsters but to help strengthen the profession as a whole. I’ve had twenty years of beatings in my own practice and would like to put a stop this nonsense from prospective clients.
Perhaps “Hell No” is a bit harsh. Perhaps the phase “I am disinclined to acquiesce to your request” would be more appropriate.
Todd, your question is central & similar to the questions of many in our field and allied professions. It was answered well by crowbert in concept. A little more detail can help to apply it in practice.
From what I've read, it looks like there are maybe 3 things you can use but can't really protect as a designer:
• public domain;
• pure function;
• fair use.
Fair use is really just for quotes, education, personal re-use, and non-profit dissemination and usually doesn't apply to our purposes in business, so I'll leave it out of this.
Until 1990, architects' designs had never been protected under US law because they were viewed as purely functional means to gain shelter. To join the Berne Convention, a major international set of copyright standards, Congress chose to recognize architects' ownership of original design expressions authored by them. However, so that no one can be kept from using a building for its basic functional purpose, lawmakers wrote an exception. This exception says in effect that if a designer does an analysis leading to a functional solution to a problem, that the purely functional aspect of that design cannot be protected by copyright.
Let's say that I developed the first 5x7 basic bath using matrices, bubble diagrams and other tools used by architects to organize information, arriving at the layout with which we're all familiar, based on functional needs of users. Can I protect this layout by copyright and sue anybody coming after me who uses it? It's not likely because of the exclusion of functional designs from protection by copyright. (Some utilitarian designs might be protectable by patent, though.) That's one clear limit on what can be protected by copyright, and also why it's a good idea to keep your design diagrams, notes, sketches, bumwad, napkins, and other programmatic & schematic materials on file with the project, to prove the source of your design if you're ever questioned.
Public domain includes works you're free to take & use, legally, ethically, and usually morally. It is tangible expression that has been released by its owner, has an expired copyright, is abandoned, or is so old it precedes copyright protection. The column or beam mentioned by emaze would be included in this category; so would some protypical, historical plan, such as a "four-square" plan or the five-over-four mentioned by GMARCH. However, if a designer uses legally available public domain material and adds to or changes it, then those changes are protected, even though the public domain material is still available from its original source. As with functional analysis, I save the sources of any public domain material that I might use.
If one of us gets sued for allegedly copying another designer's work, who determines whether we have the right to use the design & profit from it? The answer is: a jury of ordinary people. Some refer to this as commonsense judgment of normal people, while cynics have called it the "any fool rule", meaning that if any fool can look at one's work and see it must have been copied from an earlier work, then that's likely to be the finding of the court.
Aug 17, 07 4:43 pm ·
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intellectual property
i have been hired to provide design services for two houses. The first house is a renovation. it is a sprawling ranch, and the owner wants a couple of the wings demolished so that the house is more compact. He will move the house over to one side of the property. on the other side of the property, he will build a new house. the renovation is fine, but there may be a problem with the "new house."
A few years ago, he built a new residence which was designed by an unlicensed designer. now, he would like to take that design and construct it on a new site. he believes that mirroring the house and making some small changes to the elevation makes it a different house. i'm not sure exactly what to tell him ... but my experience and gut reaction is as follows:
the design remains the intellectual property of the designer, even though he is an unlicensed professional. you cannot build this house again without his permission. you would have to pay one of us to modify the construction documents. i would love for it to be me, but I don't want to open myself up to that kind of liability, because i would like to be a real Architect one day. (it is a good amount of work on my part, because the original drawings were hand-drawn and i would need to draft them into CAD) i would suggest that you obtain the original designer's permission in writing for you to have another designer ( namely myself ) make these changes and put together a new set of construction documents. this would absolve the original designer of responsibility if the house ever fell into the earth, it would protect you from having him come back in six months and demanding you pay him for using his design again, and it would protect me from violating the intellectual property of another designer.
plus, it is wrong to use this man's work for my financial gain without his knowledge or approval. agree?
Have you done residence drawings before? I don't see any reason that you can not reiterate a home that an owner wishes to do again with minor changes. The real question is why doesn't he get the previous drafter to do the second one? He probably doesn't want to pay that person again, thats where you come in. How large is the house(SF)? I did this for a friend while in undergraduate school and we mirrored and did everything you are explaining. 9 times out of 10 the original drafter copied some other spec home to start off with. I really don't buy into this intellectual property crap. If I draft something, it's my work, regardless if it was based on a previous built home. If the home looks alot like other homes, i wouldn't sweat it.
Others feel free to disagree.
TW
Well --- this is seriously enough ,but maybe a long shot ; but if you anyway mall a set of plan drawings into a 3D drawing, did not build the actural spects. as you put it together of frames instead of ply boxes , then you would renovate it so much cheaper it would be another house case you changed dimensions --- but heck, you might do that anyway , if you realy would call it your's.
Then about credits ,well is that so difficult ? How much help was the original blueprints, are the concept in fact the same but a few cheap modifications, maybe ruining the design , ------ guess we newer know how things would work with just a bit honestym atleast I proberly wouldn't spend the money ,those the newthinking did not return, for a trial why shuld I against a thief, that alone are punish enough being one.
Let me say it in a different way --- you already talk about a 3D drawing ; digitize it and generate a 3dh framework for it , no one would say it is the same design, you build it so much easier and so much cheaper, and can get a discount on all the sheet materials you use.
1. You can document the exising house - that's not a violation of copyright. And if he wants to copy the house and not the plans, then he should really be surveying the built house, shouldn't he?
2. How old are the plans? I am curious, given that they are hand-drafted. If they are 20 years old, the guy might not even be in practice anymore.
3. I would be hesitant to have a non-architect draw up plans that aren't even going to be reviewed by a licenced architect, much less approved by one. This guy is sending up red flags to me.
4. There was an article cited in archinect's news feed about a year or so ago where a developer got a set of plans from a Architect's disgruntled ex-employee, flipped the house, "changed a few things" and then got caught as a friend of the architect drove by and asked him about his latest house - the stolen one. "Minor Changes" are just that - minor. The developer got sued and lost, and I think the judgement was in the area of $6M. So, you could always find that story, print it out and leave it in the guy's mailbox.
5. You should suggest to the owner to contact the designer. Its the right thing to do even if it weren't legally required (which it almost certainly is.) Plus, if he blows it off he's probably not a very good client anyway, and you just saved yourself a lot of aggrivation and time by the mailbox waiting for your check.
The original Article:
Deacon Herald
The Original discussion.
just remember ideas can be owned according the the laws of math.
can not be.
I don't get it - the site will be different, how can you just mirror the house?
it probably won't make sense on the site. that seems more of a problem to me than the intelectual property issue.
Gillespie, the appropriate moral foundation is that you should not copy another's work without appropriate compensation. If the architecture field were not so full of steal'n'stamp whores willing to purloin the work of their peers & predecessors without paying, we'd all 1) control our artistic expression & documents more thoroughly, 2) limit liability as well as damage to reputations incurred through inappropriate re-use, 3) earn a lot more money. Do unto others as you'd have them do unto you.
For the moment, this leaves the very ample legal argument untouched, although crowbert illuminated it briefly. Don't touch this one with a ten foot pole unless client is willing to get permission (in writing!) from the former designer or else allow you to do so, and pay the designer a (probably minuscule) royalty for re-use of his or her work.
In fact, you'd do yourself a favor to pick up the phone and call the former designer to see if he was paid by his former client. My experience has been universally good in this regard. Usually, they thank me and give me standard rates for copyright release (if they're part of the "plan industry" business), or they thank me for asking but say no, and I avoid a nasty problem. If they never thought about it before, we can open a dialog on a fair exchange.
A more significant problem I've avoided this way was learning of clients who left a trail behind them littered with the detritus of unpaid architects and other designers. Has your client had enough respect for the original designer to seek permission before asking you to use those instruments of their service? Will this client treat you the same way?
Also, ask every client to sign an agreement that assigns any and all of "their" sketches to you and to protect, defend, and hold you harmless against any copyright claims that arise from your use of same; if they balk, it's a *real* bad sign. I knew a designer back in the 1980's who paid nearly $100,000 to a plan publisher as a settlement for using what he thought was the client's crude plan sketch; actually the client's high schooler had traced it out of a plan book.
Never give away your ownership in your designs for free or even for cheap if you think well of your profession.
To aid your understanding of this subject, check the outstanding pdf download of a 72 page manual titled, "Copyright Basics for Home Designers and Publishers", by intellectual property attorney David Bennett (undergrad degree in architecture) at Coats and Bennett PLLC -
link
This isn't just about money. Copyright protects you from theft of your ideas expressed in your deliverables by granting you, as the creator, legal control of their use and by protecting the design itself. Remember from history, the creators of many of the monuments most revered, particularly in Greece, were slaves, themselves the property of landholders. By not asserting control over our intellectual property, we willingly submit to those who would willingly enslave us.
I don't think you will find many followers here --- if it is a spetacular or unique building , then everyone will think " now if I designed that, I would become famous, so if I one day hit the front pages with something unique and as spetacular as this, -- then ofcaurse no one must be allowed to copy it, and doing it without mentioning my name, now no crime are vorse than that"
"Intelectural property" seen from the architects point of view is that of the looks of a building, the expression, the unique house, how the walls and floors are situated to deliver a building. This one-eyed perception then allow architects to "borrow" what they don't think is architecture without leaving a single word of credit ; quite a plesant arangement like how you see with 3dh ---- sorry to mention 3dh but a crime don't become less a crime if just more criminals back it u ; in this perspective it is my claim that develobing a new building method, that method is just as much an intelectural property as any first price in an architect contest.
What we can reconise among architects , is that copyright and intelectural property , call for a double agenda ; with 3dh architects and engineers since it was published has been fighting it with all means, but as soon a fame architect or engineer ; one of their own, "borrowed" it with more or less understanding of the technike , sometimes even destroying it with clumpsy attemts , then copyright or intelectural property count nothing , even the method been published and documented, -- as long as it is a fame Sir engineer or an arogant academic, then copyright or intelectural property simply don't exist., and what you see, is that in the name of new spetacular images and emty hull buildings, robbing , stealing of intelectual property are allowed without even a line of credit for the develober of a new building technike.
In short words --- in architecture halve an hour throwing a sketch is justified to allow both copyright and ownership of "intelectural property", but if the creative process aim higher to deliver something groundbreaking as a brand new building method and the publishing of that is followed by hundreds of various examples --- then that yield no response as towerds intelectural property , not at all --- in architecture not being one of us, this is engaged as pray, and like everyone know, a thief allway's are looking for a bad exchouse ,both lies and chikane, bullying are allowed to allow the fame stararchitects rob what they can't figure out themself.
What realy have been a surprise for me, promoting 3dh just as a happy messeage, as a happy sharing of halve a life's work ,finaly delivering , is how much hate and arogant joy of evil doing ,has been the response.
Strange proberly not, followers are allway's willing to sacrifise honesty, but their reson, I newer figured out that, how to laugh while you knowingly are harming some nice guy, no realy I don't understand that drive.
an interesting thought:
previous discussion thread on "copycat house" only got 6 posts, and it was a pretty widely publicized case.
http://www.archinect.com/forum/threads.php?id=20171_0_42_0_C
The present entry, begun by gillespie, has nearly twice as many replies, though it's based on just one designer asking advice from peers.
This is said to be one of the fastest growing areas of law practice. Back in the early 1990's when the US had joined the Berne Convention and passed laws specifically applying copyright to architectural designs, I thought that it might take a couple of decades (or more?) for all the consequences to shake out in the courts so the various stakeholders could reliably predict their respective boundaries. This is beginning to hold true, and it's helping provide better order to the marketplace for architectural and design services.
In the 1980's when I began practice, it was commonplace for clients to come to a good designer, get a design, then "disappear", often without paying, in actuality taking our designs to inept drafters who would draw them for a fraction of our fee. (& yes, sometimes these "drafters" were licensed as architects and had a stamp.) We had to be hyper-aggressive about getting money up front and demanding payment before anybody walked out our door with copies of our sketches, and even then we sometimes saw buildings suspiciously similar to our schematics, but had little or no recourse.
Now, with protection for our design, as well as our drawings, we can enforce more effectively. This makes us more likely receive payment for conceptual design services and able to enforce control over subsequent phases more effectively: fewer bastardizations of design intent by some inept drafter or incompetent builder; fewer clients who renege on a final payment, figuring we'll never dare enforce it out of fear of a mega-counterclaim.
My dos cents (from one villa person to another)-
Propose designing and executing your own idea-
After expressing to the client the potential hassel of persuing the old design you may have landed yourself a fresh slate for designing your own unique piece of architecture.
If that doesn't fly I can speak from a current project in an office im working at. Same senario except the old designer is a "consultant"= calls the office 10 times a day requesting drawings and making suggestions and being annoying. The old desing was in main, the new desing is very different but the "ideas" the client like from main are being manipulated on the new project to change the program. But the ideas constitute the need to gain permission from the old desinger. All the old drawings were hand, and we modernized the whole design, but it doesnt matter. ideas are ideas.
a lot depends. morally and ethically, i can't see how 'flipping and minor changes' doesn't work out to be the same as stealing. it's intellectually lazy besides.
legally, a lot depends. the original designer, architect or not, owns the copyright on the design. however, if there was an agreement assigning the copyrights to the developer, you're ok. if not, you're open to a lawsuit by the former designer. you will have basically stolen his design.
your idea to get permission in writing is good. if you get it, i would call the designer directly to see if he actually signed the document (you never know what kind of forgery could be done). if it's all up and up, go for it. if not, risk turning both houses down. you'll be much happier in the long run...
laru, you hit it on the head. beyond the immorality of stealing (aside - imagine We have to steal from a non-architect?), it's indeed intellectually lazy. that's why rob(E)'s legit response, to "Propose designing and executing your own idea", won't likely fly with this client (even though it's a good idea, rob(e)).
in other words, i lack confidence that a lazy-minded client will respond favorably to an activist architect's proposal (unless architect offers to do it for nearly free, but that's a different thread).
gillespie, hope these responses don't make you feel totally trashed (let's see: potentially an immoral, illegal plan pirate, who has to steal ideas from vo-tech drafters and take on no-good clients; wait a minute is that a mirror?), all because you asked in all honesty for guidance.
does our profession comment on at least some of its members? the real question is, how'd we get here?
I am an architect in Atlanta. For the last twenty years I've specialized in residential work. It seems that this town is run by the builders. At least they seem to think so. They and their homeowner clients make no bones about telling you they are calling every architect and designer in the phone book to get fee quotes. They will not hesitate to demand that you redraw someone else’s work for them. In fact they get quite indignant if you refuse.
I recently settled a copyright infringement case for just under $100,000.00. A builder whom I had been working with for many years called me up one day and asked if I could send him some ideas for cluster plans. I faxed him the cluster stock plans that I had. A week later he called me back wanting a price to make some changes to the plan and build it twice. I quoted him $2,500.00. Cheap right? He scoffed and said he could get a whole custom design for less then that. I lowered my price a bit and he responded “I’ll just get my partners “drawer” to redraw it (in Georgia they call them “drawers” not draftsmen). I informed him that I could sue him for copyright infringement and he said “not if you change it enough” and hung up (sweet guy). Four months later I called the county permit office and got a list of his building permits with addresses. Drove out to the first most likely target and Bingo! It took me a while to decide on a good copyright attorney but I did find a one.
In fact his partner did have someone who would copy it for less. They did the first house for four-hundred and sixty dollars and the second one for under three-hundred & fifty bucks. I would have sued then too but someone had already beaten me to it. They are long gone.
Which brings me to another question, Todd_ufl, what’s up with your attitude (see above)? Do you have any stock plans I can look at? How much equity do you have in your home? What is your phone number and address? My attorney would really like to meet you.
I can tell , that it is not enough to brag about a buildings cost of only a third and strangely the promises of a stronger housem a rebuildable structure spare frames at any time even in a 100 years is no good buisness compared staying with the old technikes and the old designs.
That make me very sad, othervise I would love to challance ,deliver something better a mountain of money , it seem ; from what I read there shuld be plenty need ,othervise.
But this mean that my designs are not good enough sad ,--- they othervise work much better compared copyright ( allow me to spell it with small caps ) , see with my designs an entrapanour trying to copy them, would be in serious trouble , as that would requier more than just a copy, while what count are the numbers, the numbers to feed the water or laser cutter --- sorry I don't get it -- with a new architecture, new methods and a different fabrication of the houses basic structure, you could replace that hill with a mountain of money.
GMARCH, if you've noticed gillespie has not bothered to answer any of my first questions. Which leads me to believe the "house plans" gillespie was referring to were probably a simple set of cookie-cutter plans similar to that found in a magazine at the grocery store. Nothing mind blowing but maybe i am wrong. But, maybe they are some monstrosity set of plans which require three engineers to review and seal. I don't know but my first impression was "no".
My first guess was that it may be similar to a situation I had while in undergraduate school a few years back. In which a friend gave me a chance to draft something "real for a change" over the summer and it just so happened to be a basic set of plans(like 4-5 sheets or something). And I have ran across that exact floorplan in several magazines over the past five years.
I honestly did not think gillespie had been offered to re-draft a 20MIL bel-aire mansion but we don't know till he responds.
Did not realize I vented any attitude. Just said, feel free to disagree. I'm not really sure what anyone here is talking about except for their own personal instances. No one will know if gillespie got his question answered until he posts again. And feel free to waste your attorney's time and contact me, I have nothing to hide. Maybe you're a GA Bulldog fan and might be mad i'm a FL GATOR. it's only a joke, don't take it personally.
Todd
Let’s leave Gillespie out of this for the moment.
You stated:
“I really don't buy into this intellectual property crap. If I draft something, it's my work, regardless if it was based on a previous built home. If the home looks allot like other homes, I wouldn't sweat it.”
If that isn’t a bad attitude I don’t know what is.
With that statement you declare that you have absolutely no regard for the rights of the works of others. A great many people make their living designing what you arrogantly refer to as ”those simple sets of cookie-cutter plans similar to that found in a magazine at the grocery store”.
So, if it’s some ones work that you look down on then is it ok to steal it?
A great many people make thier living by designing “those simple sets of cookie-cutter plans” and they are currently suing the pants off of people like you who violate their copyrights. Donald Gardner, Bill Farmer, Frank Betz, And Mike Garrell are just about all using my same law firm, so keep it up.
If you don't beleive me then call them up and ask them.
And by the way, if I catch anybody else stealing my work it will not be a waste of my attorney’s time I assure you! I’ve spent the last thirty-five years of my life learning and developing my design skills, building my business and marketing my work. So watch your ass!
Others feel free to disagree.
Well GMARCH, I just noticed I was your first post so I must have really pushed some buttons with my disagreement with intellectual property or you have really been waiting to tell someone about your 100K settlement. This is a discussion forum and everyone is entitled to their opinion. I guess you are preying the boards and looking for people to sue and not discuss topics. Why not share some of your 35 years of experience and not ask people how much equity they have in their home. Perhaps you and your new found lawyer friends can laugh it up how you search for old clients to sue. Not really what I would waste time with but to each its own.
My apologies to gillespie for his thread being hijacked.
I want to know how much did the attorney get when it was all said and done?
i've been busy over the past couple of days and apologize for not updating the discussion in a while. so, if the thread has lost its way, it's a bit my fault.
from what i can tell, the plans are not cookie cutter. the gentleman who designed them does custom house plans. i can only assume that the work is his own. the drawings were done only a couple of years ago - he just prefers to draw by hand, i guess. based on the area that the house was built in, i would guess that its that its a half-million dollar house, if sold on the market. roughly 3500 sf, two-story brick with some architectural salvage incorporated into the exterior. i have been to the original house in question, and the fit and finish is quite nice. pella architectural windows and heart pine floors, etc ... none of these details show up on the drawings. they are pretty bare bones compared to the houses i have worked on professionally: plan, elevations, wall sections, foundation and site plans. very little interior detailing.
i don't believe the client is malicious or duplicitous. he is just looking to save some money up front by having a grad student draw the plans instead of a more established professional.
i dont really think that the thread has been hijacked. this is one of the most interesting discussions i have been involved with in a while. we all recognize that the totalitarian vision towards design of architect's past ( wonder who that might be ) has fallen by the wayside, and that, argueably, the relevancy of the architect has been lessened in the minds of the average american. so it comes as no surprise to me that when the average person, one not familiar with the design + construction industry, engages an architect for the first time, they are surprised to learn that they do not "own" the drawings that are used to build their building. while that is not completely applicable to my situation, i think it is a problem of public perception. and, judging by the variety of opinions expressed here, a problem of perception within the industry as well.
we should own what we produce. but lets be realistic, in a digital age it is easier and easier to steal. i have no qualms with downloading music or a program here or there. i know its wrong, but i could tell myself its a victimless crime. of course, however, it isn't. it is professionally courteous to contact each other if a client is trying to circumvent "the system", not to frustrate them, but to let them know that the work we do is valuable and that they would be equally upset if someone stole from them to save a couple of bucks.
$0.02
for me, i'm working with the client to receive approval from the previous designer - in writing. oh, i hope my spelling hasn't been too terrible - this has been a stream of conscious type of entry.
Ålease aææow me to explain, that my contribution all, are made in the spirit of evolvint the industrie, not allowing it to stay in yestoday, maybe realise that digital has a lot of applications among one are the future.
What happened ? I didn't write that I wrote ;
Please allow me to explain, that my contribution all, are made in the spirit of evolving the industrie, not allowing it to stay in yestoday, maybe realise that digital has a lot of applications among one are the future.
It sounds to me like Gillespie is picking up quite a bit of good information from this thread.
One benefit of my thirty-five years of experience is that I’ve learned a few important things to protect my clients and myself from getting sued, as well as stopping those predators who try to take my property without paying. In my opinion this does address Gillespie’s question. What this friend of Gillespie’s is asking him to do is a violation of someone’s property rights, although neither of them may have realized it. These rights are protected by the federal copyright act.
Todd, what you wrote demonstrated your willingness to violate that law. By doing this you are also undermining the entire profession, our fees and the inherent value of our design work. Each time you tell a prospective client that you are willing to do this you damage our ability to make a living practicing this profession. You are in effect cutting your own throat. If you tell a home owner this he will probably tell ten other people. If you tell a builder this he will tell twenty people and a realtor will probably tell a hundred in the course of his career.
This is my first posting this site. Many practicing professionals that I know are frustrated with just this sort of nonsense from members of our own profession.
I am usually to busy to take time to hang out on these forums or to drive around with my lawyer looking for law suits. If you re-read my first posting you will see that my lawsuit was the result of this builder blatantly getting in my face and stealing my work. If someone broke into your home and stole your property would you not try to have then prosecuted under the law?
After all of these years of experience, I intend to make a decent living in this profession, even if it means taking necessary action to stop the pirating of my deliverables and my designs. Trying to negotiate fees with people who believe that it’s “ok’ to steal someone’s work and just take it to another draftsman is a very frustrating joke.
Perhaps if we all stood up for ourselves we would be better off.
Then emagine you are are a guy, with a free develober copy of AutoCAD, who spend his life as an artist, develobing fancy new building methods, share them openly and just ask for the credit being the method used, that my name are assigned the Design, makeing it possible so to say.
PerCorell:
Nothing personal but in repsonese to your post:
Huh?
Try using "World Translate" at
http://world.altavista.com/
gillespie, you're doing the right thing in working with your client to secure permission from the original designer.
if the old guy feels any concern over not getting a new commission from "his" client, there's actually a decent article on "rejection" in residential architect this month, for your edification or sensitivity if you will, not necessarily to show him. however, he's probably fairly mature & won't mind as long as he's treated honorably and offered some compensation (see my earlier post); believe it or not, some folks will may ask you to share your derivative work "backwards" with them as they share theirs with you — with a little caution, this can work, too. (of course, some are porcupines, but these just warn you ahead of time so you don't get stuck with barbs in the form of summonses fired at you later!) most designers respond in kind when treated right.
i've made good contacts over the years among licensed architects
as well as among some of the better "designers" and learned from both. (i yield nothing to the training and internship that set me apart as a registered architect, as opposed to those who did not choose this path, though i respect the abilities of many of them, but that's another thread.) by treating him fairly, you may find someone who can be of occasional value as a future contact peripheral to our field, if nothing else. (network!)
i Do "give a crap" about somebody else's property rights! and that's what intellectual property is. unlike real estate, we can create more of it, but it doesn't stay our property forever. after a few years, or if we don't act to protect it, we can lose our ownership to the public domain, where it's legal, ethical, and probably moral for others to take & use without paying the originator.
confusion over this and related matters lets some less knowledgeable people believe erroneously that they "own" a design because they bought a plan book or because an architect designed a building for them. there is no excuse for educated professionals to hold obstinately to such beliefs or to rationalize reasons that enable their choice to steal designs & drawings of others (no, not even if you drafted it yourself). we can all help educate clients for their protection & ours, but, unfortunately, we need to educate many members of our own and related fields, as well. those among our peers who refuse to learn by choice remain professional ignoramuses.
My question concerning "intellectual property" is where does it begin and where does it end. If someone can answer this, then maybe I would change my mind in regards to it. I think the way some our using this term is a bit overboard. Id be willing to bet that over a hundred architects or drafters claim to "own" the exact same plan on numerous occasions. So, who is the owner. You I guess, but along with a hundred others. That's the "crap" I don't buy into. I appreciate everyone's input and feel free to continue bashing me the rest of the afternoon. But, please answer the question above; where's the line?
It is almost impossible to stop violating of copyrights and intelectural property, --- the only way I see, is to educate those who do, how bad a buisness this realy are.
There are enough arguments for that, please fill in ....
The documents are "instruments of service". If you google it you might see something like this:
Instruments of Service: Clients hire design professionals to perform services that are expressed through 'instruments of service,' such as drawings, plans and specifications. Those documents are not products or 'works for hire,' and the client does not normally buy or own such documents. Under standard contract forms, the design professional retains the design, the copyright of the documents and the right to use the information contained in the instruments of service. The client usually has the right to retain copies for information and reference in connection with the use and occupancy of the project, but it is clearly stated that the documents are not intended to be suitable for reuse by the client or others for modifications to the project or any other project. If the instruments of service are transferred, the design professional should insert a provision that disclaims any responsibility that might exist for any use beyond what is intended. The provision should also commit the client to take sole responsibility for any future use of the documents and indemnify the design professional for any claims, costs, losses or damages resulting from any future use or modification of the instruments of service.
To make this about as simple as possible:
The guy owns the house, the designer owns the directions to build the house.
I like that much!
I have had the occasional client demand that I remove the section of my contract that refers to intellectual property rights and assign all of the rights to the drawings to him. I've often thought about this issue and I've decided the standard response to any such request should always be "Hell No".
To do this would remove the biggest protective clause in your contract. It may even make the rest of your contract hard to enforce. How can you deny them the use of drawings that do not belong to you in the first place? I’ve had them argue “I paid for em they’re mine”. Do not fall for that one! You would be screwed, severely.
You would also be open to copyright infringement action by said client should you ever do anything that he considers similar to “his” work. This law be tricky stuff, yes? I consider anyone who would ask you to do this to be dangerous to your practice.
I once had a client get ugly when another five-over-four I designed was constructed six blocks from his house.
A friend of mine made this mistake and the client did come back and threaten to sue him over a similar 5’x8’ bath room. Yes, there are people like this out there, so beware.
Dangerous clients would be a good subject for another thread.
A say all of this not just to scare you youngsters but to help strengthen the profession as a whole. I’ve had twenty years of beatings in my own practice and would like to put a stop this nonsense from prospective clients.
Perhaps “Hell No” is a bit harsh. Perhaps the phase “I am disinclined to acquiesce to your request” would be more appropriate.
If you have ever drawn a column or beam, the idea was probably used before.
Todd, your question is central & similar to the questions of many in our field and allied professions. It was answered well by crowbert in concept. A little more detail can help to apply it in practice.
From what I've read, it looks like there are maybe 3 things you can use but can't really protect as a designer:
• public domain;
• pure function;
• fair use.
Fair use is really just for quotes, education, personal re-use, and non-profit dissemination and usually doesn't apply to our purposes in business, so I'll leave it out of this.
Until 1990, architects' designs had never been protected under US law because they were viewed as purely functional means to gain shelter. To join the Berne Convention, a major international set of copyright standards, Congress chose to recognize architects' ownership of original design expressions authored by them. However, so that no one can be kept from using a building for its basic functional purpose, lawmakers wrote an exception. This exception says in effect that if a designer does an analysis leading to a functional solution to a problem, that the purely functional aspect of that design cannot be protected by copyright.
Let's say that I developed the first 5x7 basic bath using matrices, bubble diagrams and other tools used by architects to organize information, arriving at the layout with which we're all familiar, based on functional needs of users. Can I protect this layout by copyright and sue anybody coming after me who uses it? It's not likely because of the exclusion of functional designs from protection by copyright. (Some utilitarian designs might be protectable by patent, though.) That's one clear limit on what can be protected by copyright, and also why it's a good idea to keep your design diagrams, notes, sketches, bumwad, napkins, and other programmatic & schematic materials on file with the project, to prove the source of your design if you're ever questioned.
Public domain includes works you're free to take & use, legally, ethically, and usually morally. It is tangible expression that has been released by its owner, has an expired copyright, is abandoned, or is so old it precedes copyright protection. The column or beam mentioned by emaze would be included in this category; so would some protypical, historical plan, such as a "four-square" plan or the five-over-four mentioned by GMARCH. However, if a designer uses legally available public domain material and adds to or changes it, then those changes are protected, even though the public domain material is still available from its original source. As with functional analysis, I save the sources of any public domain material that I might use.
If one of us gets sued for allegedly copying another designer's work, who determines whether we have the right to use the design & profit from it? The answer is: a jury of ordinary people. Some refer to this as commonsense judgment of normal people, while cynics have called it the "any fool rule", meaning that if any fool can look at one's work and see it must have been copied from an earlier work, then that's likely to be the finding of the court.
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