I'm in NY. I did design work for a client who used my drawings to get Planning Board and Historic Board approvals for the building. Instead of constructing the building, he has decided to sell the property with the approvals which include my design.
If the new owner of the property does not hire me to complete the construction drawings, can he/she use my design and have another Architect complete the work?
Chad Miller
Mar 29, 23 12:57 pm
This sounds like a question from the ARE's.
I'm not sure.
If the property is sold an the new owner wants to use the design to build something I THINK you have a case for being paid a fee.
My reasoning is:
The client can't build more structures based on the design you did without paying you more.
The owner can't give the design to someone else to build structures from without you being paid more.
I believe the design is only for the owner to use for that particular property. If they want to use it on another site then you need to paid more.
I could be wrong. It's probably best you speak with a lawyer about this. I'd love to hear what others think about this. Especially architects in NY.
Richard Balkins
Mar 30, 23 3:38 pm
An owner can sell their copy of the plans but that does not mean they can sell or transfer the license. In fact, we should be writing our contract defining the license of use of copyrighted work be it for a single build or multi-build. Yes, the original plans can be resold like a book but that does not mean the license to build a house or whatever from those drawings. They have to get a license from the copyright owner (in this case, the original architect/designer or firm or successor firm that acquired the original firm or otherwise a successor owner of the copyright. These do have to have a paper trail of legal documents signing over the ownership rights to the copyrights to be properly done (from a legal point of view) because otherwise, things can get problematic.
Think of it as a "proof of sale" documenting the ownership title being transferred. They do not have to be overly lengthy but just need to be sufficiently detailed and clear as to what is being transferred so it is clear and understood as to what is being sold, from who to who, and when it took place. It's essentially the same for architectural copyrights as it is for software copyrights. This applies in similar ways for patents but there are very specific forms and processes with the patent office to follow. We may need to be more robust about the terms of any licensing agreements we grant to clients.
This can be inherently part of the contract for architectural services with a standard single-use license but if a client wants to build more than one building from that design, they can purchase a license for multiple units at a price set by the copyright owner (which would be an architect/designer). Take a page from how stock house plans industry is handling multi-license. I have some example documents that you may tailor. With stock house plans, the design is usually already made with modifications for a specific site. A custom design is usually for single build but you can offer a license to build more with indemnity from any liability resulting from modifications to the design or deviation of any kind by a third-party or by the client/purchaser.
You will want to cover your ass and still be paid for the assumed liability that you will still have for your work done. You may also set geographical limits of where the license is valid. However, you would want to think about how you can design and plan for site variations and how you specify so it is addressed properly. So you may have.... say... two or three foundation options which specifications will indicate which foundation to use in a given site terrain. Will it be slab or will it be pier foundations, etc. You may also have special specifications for high wind conditions.
Stock house plans and similar arrangements are more like product design so you may have to approach things a tad differently than a one-off custom design. You could face strict liability and related liabilities such as product design defects if there is a claim of design defect. This might sound similar to E&O but you might not be covered by E&O and need either a general liability insurance or product liability insurance.
vblevin
Mar 31, 23 5:22 am
If you have any standard language that you can share regarding "drawings being instruments of services... for this project only", or anything else that I could add to my proposals regarding the use of the design/drawings being specific to one project only or even for multiple projects, I would appreciate it.
Richard Balkins
Mar 31, 23 10:53 pm
There are ones available from AIBD and there are those from AIA. You should still consult an attorney to draft up, review, or modify terms of the contracts as needed taking federal and state laws and judicial cases that may effect certain terms of the contracts.
JonathanLivingston
Mar 29, 23 1:47 pm
I think it is correct that the drawings themselves cannot be used for submission, construction, or administration of construction with you being paid further. They can however be re-drawn by another architect who reviews, further articulates, and takes responsibility for the design and getting the construction built. The owner does own their copy of the drawings and has a right to reproduce those. They presumably paid for the design and can use all they like as inspiration. They would have to pay again for further design development and construction drawings. They cannot white out your name and use the actual drawings you produced for further submissions of any kind, they don't own or get CAD or any of the instruments of service. Modification of your actual drawing makes it an instrument of service rather than a product of it. They can reference previous approvals or permits to proceed with design without you as those are now public records. Building something that looks like your design which was approved by the historic board, happens all the time. It's a good lesson in why we shouldn't price our services to make money just on the DD / CD drawing. But actually value the design service you bring to SD
x-jla
Mar 30, 23 11:30 am
Wait, you can copy another designers drawings? As in import a jpeg CAD and trace it out…? That seems wrong. I always thought that would be a copyright infringement?
x-jla
Mar 30, 23 11:38 am
Especially since the second firm would be profiting off the copied work.
Chad Miller
Mar 30, 23 11:39 am
It's very hard to prove and the onus of proof is on the person making the accusation. Weird huh?
JonathanLivingston
Mar 30, 23 12:22 pm
To some degree all architecture is derivative, the primary concern is a liability rather than royalty. When you get into a lawsuit you would have to define what you lost based on the infringement. If someone copied the front elevation of your building design what did you lose? The opportunity for future work that you have not yet done? Can you for sure say that work would have happened? Presuming it is another professional Architect who picks up the design, reviews the approved elevation under their professional opinion, deems that it does not violate life safety, zoning, or other applicable laws, and then proceeds to elaborate on the design with details for and administration of construction. That new Architect has now taken the liability and done work you did not do. Copying as in using the same drawing over again in a different location, or for a different purpose can prove a loss. I billed X much for that work last time, and then you used the work again for free. I am owed X money. I have X liability attached to the previous design and my professional responsibilities hold me liable for X again.
Chad Miller
Mar 30, 23 12:52 pm
/\ That right there is why it's very hard to prove copyright infringement in architecture.
Richard Balkins
Mar 30, 23 3:48 pm
"The owner does own their copy of the drawings and has a right to reproduce those." Owning a copy is not the same as owning copyright. Right to reproduce is a copyright owner's right. Do not assume the client has the copyright or a license to reproduce. You need to have proof. Otherwise, you can be sued for copyright infringement along with the client.
Richard Balkins
Mar 30, 23 3:59 pm
While I agree with some of what is said regarding difficulty of proving your design is original but you don't have to, really. It's the composition as a whole. Copyright issues of architectual work is going to be more subtle. Buildings are frequently assemblies made from a lot of parts but it is the whole composition and expression of the assembly that you are claiming. There isn't going to be anything produced today that will be 100% original.
Richard Balkins
Mar 30, 23 4:16 pm
Of course, you'll have a stronger claim for copyrights if you are doing designing a more contemporary/modern/post-modern design than say, a older architectural styles of the pre-WW II era styles.
vblevin
Mar 29, 23 2:56 pm
Don't I own the design? The design/drawings I created are instruments of service specific to getting approvals from the Planning and Historic Boards. The approvals where received. End of service.
Chad Miller
Mar 29, 23 3:16 pm
Please understand this is only speculation based on past experience in another state. NY could be different . I belive you do however the client can still take the drawings you provided them and tell another architect to 'make it look like this'. I think the owner and new architect would have to go through all the various approval processes with the various agency's again for the new design.
JonathanLivingston
Mar 29, 23 3:23 pm
Copyright protection never extends to ideas, procedures, systems, or concepts, even if they are completely original. As long as the work is not copied, no infringement occurs. Patents protect original ideas and inventions, providing absolute protection from willful or inadvertent infringement. Some building components may be patented, but the overall design cannot be. Thus, while architects and engineers may own their original models, drawings, and specifications, they do not own the designs. You are welcome to look at an example on the internet or in this case the other architect can look at the public record of historical design approval and then produce their own designs that meet that approval. The flip side of this is you have no liability for how they further develop that design. You have very little liability now. Think of it this way. What if it was just a simple box? It could be built in a number of different ways with different wall construction, detailing, and methods of exiting, ventilation, and energy code compliance. What they cannot do is cut and paste your work. The new architect takes the liability and gets paid for that liability. Architects get paid for liability they get new work and new liabilities from results and designs they produce
Richard Balkins
Mar 30, 23 3:03 pm
Patents only protects original ideas realized in the form of an invention. Ideas, in general, are not protected. Copyrights can protect a written work expressing ideas but only the expression of the idea not the idea itself. It is recognized that there is practically no such thing as a completely original idea. With billions of people thinking of thousands of ideas every day for thousands of years that there is practically no such thing as a unique original idea so there's no point in rewarding someone protection just because they thought of it in some fashion but never realized the work. There is no intellectual property rights for any random passing thought or idea in your head.
przemula
Mar 29, 23 4:19 pm
Per ARTICLE 7 B101 Standard Form Between Owner and Architect you, as an architect own drawings and specifications known as instruments of service. New owner can continue the work, but only after you grant him a license, which you're allowed to do. Otherwise your work is protected by Architectural Works Copyright Protection Act 1990. PS - this is from an ARE candidate point of view and I'm not an attorney so you may as well disregard my opinion
(b)In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
U.S. Copyrights laws.
Richard Balkins
Mar 31, 23 11:04 pm
Patent protects inventions not merely an idea. It may protect the ideas realized in the processes and methods of an invention but not mere ideas.
Richard Balkins
Mar 31, 23 11:07 pm
Just because you have an idea for faster than light travel, it is not patentable until you invent a means for faster than light light travel. None of the intellectual property rights / laws rewards mere ideas or thoughts. You have to "realize" it into an expression (copyright) or an invention (patent). If it is just in your head, it doesn't matter... it is unrealized.
Richard Balkins
Mar 31, 23 11:28 pm
Copyrights protects the expression of an idea. Patents without a working prototype may be difficult to obtain but it would have to be able to be made and customarily, a prototype would be necessary. You can begin the patent process but eventually it needs to be realized in some fashion. You have to take it across the line from mere idea to invention. Otherwise, the idea can just sit in your head and be protected until someone else thinks it and actually do it. Then they get the patent. It is not the intent of patents to be granted to someone who merely thinks an idea but do nothing. It is to reward inventors who does the work of "realizing" the idea into an invention and make it real and promote innovation.
jcarch
Apr 2, 23 11:55 am
For next time, the lesson here is not to leave things to assumptions (yours, your client's, the new owner's). Add specific language stating that you own the copyright, and under what terms you would give it up. And add terms about what happens if the owner sells the property to a new owner. Our agreement says that we'll work for the new owner under the terms of the current agreement, but only if we've been paid for all services to date, and only after the new owner signs a letter (drafted by us) specifically stating that they will abide by all terms of our agreement w/ the prior owner. We don't try to gouge the new owner by charging him a fee to keep us on the job, even though in theory we've got some leverage we could use to extract $ from the new guy. In fact we actually got a significant commission because an architect tried to get extra $ from a new owner, who did not appreciate the original architects "extortion."
I'm in NY. I did design work for a client who used my drawings to get Planning Board and Historic Board approvals for the building. Instead of constructing the building, he has decided to sell the property with the approvals which include my design.
If the new owner of the property does not hire me to complete the construction drawings, can he/she use my design and have another Architect complete the work?
This sounds like a question from the ARE's.
I'm not sure.
If the property is sold an the new owner wants to use the design to build something I THINK you have a case for being paid a fee.
My reasoning is:
I could be wrong. It's probably best you speak with a lawyer about this. I'd love to hear what others think about this. Especially architects in NY.
An owner can sell their copy of the plans but that does not mean they can sell or transfer the license. In fact, we should be writing our contract defining the license of use of copyrighted work be it for a single build or multi-build. Yes, the original plans can be resold like a book but that does not mean the license to build a house or whatever from those drawings. They have to get a license from the copyright owner (in this case, the original architect/designer or firm or successor firm that acquired the original firm or otherwise a successor owner of the copyright. These do have to have a paper trail of legal documents signing over the ownership rights to the copyrights to be properly done (from a legal point of view) because otherwise, things can get problematic.
Think of it as a "proof of sale" documenting the ownership title being transferred. They do not have to be overly lengthy but just need to be sufficiently detailed and clear as to what is being transferred so it is clear and understood as to what is being sold, from who to who, and when it took place. It's essentially the same for architectural copyrights as it is for software copyrights. This applies in similar ways for patents but there are very specific forms and processes with the patent office to follow. We may need to be more robust about the terms of any licensing agreements we grant to clients.
This can be inherently part of the contract for architectural services with a standard single-use license but if a client wants to build more than one building from that design, they can purchase a license for multiple units at a price set by the copyright owner (which would be an architect/designer). Take a page from how stock house plans industry is handling multi-license. I have some example documents that you may tailor. With stock house plans, the design is usually already made with modifications for a specific site. A custom design is usually for single build but you can offer a license to build more with indemnity from any liability resulting from modifications to the design or deviation of any kind by a third-party or by the client/purchaser.
You will want to cover your ass and still be paid for the assumed liability that you will still have for your work done. You may also set geographical limits of where the license is valid. However, you would want to think about how you can design and plan for site variations and how you specify so it is addressed properly. So you may have.... say... two or three foundation options which specifications will indicate which foundation to use in a given site terrain. Will it be slab or will it be pier foundations, etc. You may also have special specifications for high wind conditions.
Stock house plans and similar arrangements are more like product design so you may have to approach things a tad differently than a one-off custom design. You could face strict liability and related liabilities such as product design defects if there is a claim of design defect. This might sound similar to E&O but you might not be covered by E&O and need either a general liability insurance or product liability insurance.
If you have any standard language that you can share regarding "drawings being instruments of services... for this project only", or anything else that I could add to my proposals regarding the use of the design/drawings being specific to one project only or even for multiple projects, I would appreciate it.
There are ones available from AIBD and there are those from AIA. You should still consult an attorney to draft up, review, or modify terms of the contracts as needed taking federal and state laws and judicial cases that may effect certain terms of the contracts.
I think it is correct that the drawings themselves cannot be used for submission, construction, or administration of construction with you being paid further. They can however be re-drawn by another architect who reviews, further articulates, and takes responsibility for the design and getting the construction built. The owner does own their copy of the drawings and has a right to reproduce those. They presumably paid for the design and can use all they like as inspiration. They would have to pay again for further design development and construction drawings. They cannot white out your name and use the actual drawings you produced for further submissions of any kind, they don't own or get CAD or any of the instruments of service. Modification of your actual drawing makes it an instrument of service rather than a product of it. They can reference previous approvals or permits to proceed with design without you as those are now public records. Building something that looks like your design which was approved by the historic board, happens all the time. It's a good lesson in why we shouldn't price our services to make money just on the DD / CD drawing. But actually value the design service you bring to SD
Wait, you can copy another designers drawings? As in import a jpeg CAD and trace it out…? That seems wrong. I always thought that would be a copyright infringement?
Especially since the second firm would be profiting off the copied work.
It's very hard to prove and the onus of proof is on the person making the accusation. Weird huh?
To some degree all architecture is derivative, the primary concern is a liability rather than royalty. When you get into a lawsuit you would have to define what you lost based on the infringement. If someone copied the front elevation of your building design what did you lose? The opportunity for future work that you have not yet done? Can you for sure say that work would have happened? Presuming it is another professional Architect who picks up the design, reviews the approved elevation under their professional opinion, deems that it does not violate life safety, zoning, or other applicable laws, and then proceeds to elaborate on the design with details for and administration of construction. That new Architect has now taken the liability and done work you did not do. Copying as in using the same drawing over again in a different location, or for a different purpose can prove a loss. I billed X much for that work last time, and then you used the work again for free. I am owed X money. I have X liability attached to the previous design and my professional responsibilities hold me liable for X again.
/\ That right there is why it's very hard to prove copyright infringement in architecture.
"The owner does own their copy of the drawings and has a right to reproduce those." Owning a copy is not the same as owning copyright. Right to reproduce is a copyright owner's right. Do not assume the client has the copyright or a license to reproduce. You need to have proof. Otherwise, you can be sued for copyright infringement along with the client.
While I agree with some of what is said regarding difficulty of proving your design is original but you don't have to, really. It's the composition as a whole. Copyright issues of architectual work is going to be more subtle. Buildings are frequently assemblies made from a lot of parts but it is the whole composition and expression of the assembly that you are claiming. There isn't going to be anything produced today that will be 100% original.
Of course, you'll have a stronger claim for copyrights if you are doing designing a more contemporary/modern/post-modern design than say, a older architectural styles of the pre-WW II era styles.
Don't I own the design? The design/drawings I created are instruments of service specific to getting approvals from the Planning and Historic Boards. The approvals where received. End of service.
Please understand this is only speculation based on past experience in another state. NY could be different . I belive you do however the client can still take the drawings you provided them and tell another architect to 'make it look like this'. I think the owner and new architect would have to go through all the various approval processes with the various agency's again for the new design.
Copyright protection never extends to ideas, procedures, systems, or concepts, even if they are completely original. As long as the work is not copied, no infringement occurs. Patents protect original ideas and inventions, providing absolute protection from willful or inadvertent infringement. Some building components may be patented, but the overall design cannot be. Thus, while architects and engineers may own their original models, drawings, and specifications, they do not own the designs. You are welcome to look at an example on the internet or in this case the other architect can look at the public record of historical design approval and then produce their own designs that meet that approval. The flip side of this is you have no liability for how they further develop that design. You have very little liability now. Think of it this way. What if it was just a simple box? It could be built in a number of different ways with different wall construction, detailing, and methods of exiting, ventilation, and energy code compliance. What they cannot do is cut and paste your work. The new architect takes the liability and gets paid for that liability. Architects get paid for liability they get new work and new liabilities from results and designs they produce
Patents only protects original ideas realized in the form of an invention. Ideas, in general, are not protected. Copyrights can protect a written work expressing ideas but only the expression of the idea not the idea itself. It is recognized that there is practically no such thing as a completely original idea. With billions of people thinking of thousands of ideas every day for thousands of years that there is practically no such thing as a unique original idea so there's no point in rewarding someone protection just because they thought of it in some fashion but never realized the work. There is no intellectual property rights for any random passing thought or idea in your head.
Per ARTICLE 7 B101 Standard Form Between Owner and Architect you, as an architect own drawings and specifications known as instruments of service. New owner can continue the work, but only after you grant him a license, which you're allowed to do. Otherwise your work is protected by Architectural Works Copyright Protection Act 1990. PS - this is from an ARE candidate point of view and I'm not an attorney so you may as well disregard my opinion
Thank you everyone for your input.
GOD DAMN IT RICK THERE YOU GO AGAIN
https://www.law.cornell.edu/uscode/text/17/102
(b)In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
U.S. Copyrights laws.
Patent protects inventions not merely an idea. It may protect the ideas realized in the processes and methods of an invention but not mere ideas.
Just because you have an idea for faster than light travel, it is not patentable until you invent a means for faster than light light travel. None of the intellectual property rights / laws rewards mere ideas or thoughts. You have to "realize" it into an expression (copyright) or an invention (patent). If it is just in your head, it doesn't matter... it is unrealized.
Copyrights protects the expression of an idea. Patents without a working prototype may be difficult to obtain but it would have to be able to be made and customarily, a prototype would be necessary. You can begin the patent process but eventually it needs to be realized in some fashion. You have to take it across the line from mere idea to invention. Otherwise, the idea can just sit in your head and be protected until someone else thinks it and actually do it. Then they get the patent. It is not the intent of patents to be granted to someone who merely thinks an idea but do nothing. It is to reward inventors who does the work of "realizing" the idea into an invention and make it real and promote innovation.
For next time, the lesson here is not to leave things to assumptions (yours, your client's, the new owner's). Add specific language stating that you own the copyright, and under what terms you would give it up. And add terms about what happens if the owner sells the property to a new owner. Our agreement says that we'll work for the new owner under the terms of the current agreement, but only if we've been paid for all services to date, and only after the new owner signs a letter (drafted by us) specifically stating that they will abide by all terms of our agreement w/ the prior owner. We don't try to gouge the new owner by charging him a fee to keep us on the job, even though in theory we've got some leverage we could use to extract $ from the new guy. In fact we actually got a significant commission because an architect tried to get extra $ from a new owner, who did not appreciate the original architects "extortion."