A developer of a food&beverage hospitality project wants us to give them full design copyright of the project. I've never had any client insist on this. It's unusual as well because it is a build-to-suit project; the tenant brought us on, but our contract is with the developer. The tenant is a great client for us, we've done several of these projects for them, with several more on the horizon. The tenant also feels that the layout and design is part of their 'brand' which further complicated the design copyright issue.
This is unusual to me, but do other people find this normal to relinquish design copyright fully? We usually use the AIA standard language about 'instruments of service' specifically for this project. If the developer insists on it, should we use it as a negotiating tool to get more fees?
Non Sequitur
Aug 27, 18 6:47 pm
Developer wants to cut you out and copy paste your work as they wish. Stand your ground and say no. Don’t give them any CAD either.
mightyaa
Aug 27, 18 6:54 pm
Agreed. You could do it, but I'd hire a attorney to draft the language so they can't a) keep you from working with that 'brand' elsewhere, and b) can't take your design and copy it over and over (make it project specific). It is unusual; I did it once, but it was prototyping corporate branding and known up front the work would be used by others to achieve the national image...fees reflected this.
llbb
Aug 27, 18 7:27 pm
Thanks for the feedback. The developer has mentioned other similar F&B projects they plan on doing, so regardless of the copyright language I'm sure they will be distributing our drawings (and that isn't unusual, nor do I really have an issue with it). What we don't want is serious copycat development, and also want to protect our buddy that is the tenant who feeds us fun F&B projects.
We are having an attorney look at it (who is quite familiar with copyright law, but not architecture/construction contracts). The developer is also pulling the indemnity flip from AIA standard and trying to remove limitations of liability. The indemnity & liability stuff every developer does though and we will negotiate that; this copyright one was new to me!
Non Sequitur
Aug 27, 18 7:34 pm
Distributing pdf record drawings is fine. Distributing cad is not.
Also be sure to run the liability stuff through your insurance carrier. Most are happy to help you and inform the owner what is or is not covered and can offer special policies if they want something more or language to make sure you don't fall off the policy... I've had owners want special stuff and pay $30k for the extra rights and coverage on a project as a additional service fee.
llbb
Aug 27, 18 9:27 pm
Yep, we always do! We avoid using lawyers (because they are so costly) and generally our contracts aren
t
llbb
Aug 27, 18 9:28 pm
enough for it to make sense, but always run that language by insurance!
shellarchitect
Aug 27, 18 10:08 pm
Yup. Client will often change their mind when they find out their demands are uninsurable and thus worthless!
shellarchitect
Aug 27, 18 10:08 pm
So I've been told at least....
mightyaa
Aug 28, 18 9:21 am
Nope shell. That $30k one was a client who believed my policy should cover the entire costs of the project $6M, and run the length of legal liability (7yrs). Neither I, nor my insurer could convince him otherwise... So we presented the costs, and he paid. Funny was in the end, he decided not to pay my final invoices, attorneys got involved, and the settlement gave me a indemnity clause; So I cancelled the policy and used the savings (annual payment) to make up the settlement loss.
sameolddoctor
Aug 27, 18 7:02 pm
Really? Since when did architectural drawings become copyrighted? If the client wants to "edit" the drawings, they should be able to. What they should not do is to copy-paste the design for other projects. This is what your contract should mention.
doctor, If you're using an AIA standard agreement the thing that allows the client to use the copyrighted instruments of service for their project and future work in their project is a "nonexclusive license" that the architect grants the owner. Check out Article 7 of AIA B101.
proto
Aug 27, 18 8:34 pm
In HS, i interned at an office. One of the tasks was to take the drawings down to the Library of Congress and get them submitted for copyright purposes (during the 80's). As noted above, this is no longer required as legal precedent is now established that copyright is implied with creation/publishing for building.
Miles Jaffe
Aug 27, 18 7:57 pm
You could offer to sell them the copyright for an exhoribatant fee but that would have to include complete indemnification of any and all liability forever.
In the meantime register a copyright with the US copyright office. If you own a copyright lawyers will represent you on spec because the odds of winning are excellent. Without a recorded copyright atty fees will be out of your pocket.
As developers are typically unethical scumbags you should register the copyright and pay attention to their activity so that they don't just rip off your design and repeat it at will.
llbb
Aug 27, 18 9:29 pm
That is a good point about liability if they own the copyright. Since they tried to flip indemnity & remove all limitation of liability as well; them owning the copyright (and being legally allowed to replicate at will) is seriously messed up.
Steeplechase
Aug 27, 18 10:52 pm
It sounds like they are looking to expand more and want to establish consistent brand standards that they can freely use themselves instead of having their look tied to someone else. I don’t think it’s that unusual with brands, but my experience may be an outlier.
BR.TN
Aug 28, 18 10:46 am
but this is why major retail chains, like starbucks, have their own in-house architecture department. I suppose the client isnt big/rich enough to be able to afford staffing that themselves?
Steeplechase
Aug 28, 18 9:51 pm
The big corporations I’ve dealt with still hire outside firms to do a various degrees of work depending on the project. From developing the entire concept to just being the architect of record. In general, the in-house team is almost never doing their own production.
A developer of a food&beverage hospitality project wants us to give them full design copyright of the project. I've never had any client insist on this. It's unusual as well because it is a build-to-suit project; the tenant brought us on, but our contract is with the developer. The tenant is a great client for us, we've done several of these projects for them, with several more on the horizon. The tenant also feels that the layout and design is part of their 'brand' which further complicated the design copyright issue.
This is unusual to me, but do other people find this normal to relinquish design copyright fully? We usually use the AIA standard language about 'instruments of service' specifically for this project. If the developer insists on it, should we use it as a negotiating tool to get more fees?
Developer wants to cut you out and copy paste your work as they wish. Stand your ground and say no. Don’t give them any CAD either.
Agreed. You could do it, but I'd hire a attorney to draft the language so they can't a) keep you from working with that 'brand' elsewhere, and b) can't take your design and copy it over and over (make it project specific). It is unusual; I did it once, but it was prototyping corporate branding and known up front the work would be used by others to achieve the national image...fees reflected this.
Thanks for the feedback. The developer has mentioned other similar F&B projects they plan on doing, so regardless of the copyright language I'm sure they will be distributing our drawings (and that isn't unusual, nor do I really have an issue with it). What we don't want is serious copycat development, and also want to protect our buddy that is the tenant who feeds us fun F&B projects. We are having an attorney look at it (who is quite familiar with copyright law, but not architecture/construction contracts). The developer is also pulling the indemnity flip from AIA standard and trying to remove limitations of liability. The indemnity & liability stuff every developer does though and we will negotiate that; this copyright one was new to me!
Distributing pdf record drawings is fine. Distributing cad is not.
Cad drawing distribution has become normal. AIA has documents for it. https://www.aiacontracts.org/contract-doc-pages/27086-digital-practice-documents
Also be sure to run the liability stuff through your insurance carrier. Most are happy to help you and inform the owner what is or is not covered and can offer special policies if they want something more or language to make sure you don't fall off the policy... I've had owners want special stuff and pay $30k for the extra rights and coverage on a project as a additional service fee.
Yep, we always do! We avoid using lawyers (because they are so costly) and generally our contracts aren t
enough for it to make sense, but always run that language by insurance!
Yup. Client will often change their mind when they find out their demands are uninsurable and thus worthless!
So I've been told at least....
Nope shell. That $30k one was a client who believed my policy should cover the entire costs of the project $6M, and run the length of legal liability (7yrs). Neither I, nor my insurer could convince him otherwise... So we presented the costs, and he paid. Funny was in the end, he decided not to pay my final invoices, attorneys got involved, and the settlement gave me a indemnity clause; So I cancelled the policy and used the savings (annual payment) to make up the settlement loss.
Really? Since when did architectural drawings become copyrighted? If the client wants to "edit" the drawings, they should be able to. What they should not do is to copy-paste the design for other projects. This is what your contract should mention.
Ummm, not sure if this is sarcasm... they are copyrighted when you stamp them. https://www.copyright.gov/circs/circ41.pdf
You can’t be serious there doctor.
doctor, If you're using an AIA standard agreement the thing that allows the client to use the copyrighted instruments of service for their project and future work in their project is a "nonexclusive license" that the architect grants the owner. Check out Article 7 of AIA B101.
In HS, i interned at an office. One of the tasks was to take the drawings down to the Library of Congress and get them submitted for copyright purposes (during the 80's). As noted above, this is no longer required as legal precedent is now established that copyright is implied with creation/publishing for building.
You could offer to sell them the copyright for an exhoribatant fee but that would have to include complete indemnification of any and all liability forever.
In the meantime register a copyright with the US copyright office. If you own a copyright lawyers will represent you on spec because the odds of winning are excellent. Without a recorded copyright atty fees will be out of your pocket.
As developers are typically unethical scumbags you should register the copyright and pay attention to their activity so that they don't just rip off your design and repeat it at will.
That is a good point about liability if they own the copyright. Since they tried to flip indemnity & remove all limitation of liability as well; them owning the copyright (and being legally allowed to replicate at will) is seriously messed up.
It sounds like they are looking to expand more and want to establish consistent brand standards that they can freely use themselves instead of having their look tied to someone else. I don’t think it’s that unusual with brands, but my experience may be an outlier.
but this is why major retail chains, like starbucks, have their own in-house architecture department. I suppose the client isnt big/rich enough to be able to afford staffing that themselves?
The big corporations I’ve dealt with still hire outside firms to do a various degrees of work depending on the project. From developing the entire concept to just being the architect of record. In general, the in-house team is almost never doing their own production.