you really don’t own that

14 August 2014

085

Those were my exact words to someone this week. Don’t take this the wrong way, but you don’t own them either.

For those of you who are thinking about hiring an architect, let me clarify an issue that often comes up when it comes to ownership of the documents or even the design. Actually what people are thinking is “what am I really purchasing?” Let’s just say I actually had this discussion with someone a couple of days ago that sparked this discussion.

So who owns the documents? The answer is “it depends” because it comes down to contract law – and I can only answer if you have a contract. Moreover, I can answer based on how most architects operate. Does it matter?

Simply put, you as a client are buying a service from your architect (or in some cases a designer) and you are compensating them for their time and any other related expenses that go into them performing the duties necessary for your project.

  • You are not buying paper
  • You are not buying drawings
  • You are not buying a design
  • You will own the building though…

What you are paying for is a service that is part of a process that leads to a constructed building, space, or physical environment. Yes, much paper is exchanged and many sets of drawings are offered up on the altar of design. At some point – if your design goes through to construction – there is a set of drawings or there are sets of drawings used to give the proper information to the builder to build your project.

Think of it this way perhaps. You don’t own the utensils or the recipe for the food you had at that restaurant. You don’t own the surgical equipment, right to write prescriptions or tests from your doctor. You own the results. In this case, it is a building or some type of physical structure. You also own the sandwich you bought for lunch and that scar from your appendectomy.

Since the client does not own the drawings or the design, how does it work? The client is given a license to use the documents for their particular project. The license terminates when the project is complete. Yes, you can keep the building (that is as long as you pay your mortgage).

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Many architects use the American Institute of Architects (AIA) Contract Documents. I use them for most projects. Some architects have crafted their own contracts (hopefully with legal help). For instance, the AIA Document B105-2007 Contract states in Article 3 Use of Documents:

“Drawings, specifications and other documents prepared by the Architect are instruments of the Architect’s service and are for the Owner’s use solely with respect to this Project. The Architect shall retain all common law, statutory and other reserved rights, including the copyright. Upon completion of the Project or termination of this Agreement, the Owner’s right to use the instruments of service shall cease. When transmitting copyright-protected information for use on the Project, the transmitting party represents that it is either the copyright owner of the information, or has permission from the copyright owner to transmit the information for its use on the Project.”

Other AIA Contract Documents have similar language that might be more specific.

Now there are cases, albeit rare, where a designer or architect might sell the documents and/or the design rights to the client for reasons they negotiate. It might be a prototypical design, the designer might be an employee of the contractor or the developer or some other unique situation where the person paying for the service is also the owner of the documents or the owner of the design. However in most cases that is not true.

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Without a contract spelling out these terms, no one can predict how a court would resolve matters if something unfortunate were to arise. I am not a lawyer nor wish to be mistaken for one. But for those of us who are very careful in our documents, we make it clear that the ownership of the documents (which also means the right to USE the documents as well as the intellectual property – the intangible aspect of the design) remains ownership of the designer unless specifically negotiated otherwise.

This might not seem like a big deal to you, however, I suggest being careful about sharing drawings or aspects of the drawings that you got from your architect without their permission. You will find that in well written contracts the license to use the documents either terminates at the completion of the project or within a specific time after inactivity or the termination of the contract. The client is not permitted to take that same design to another design professional to execute it.

Drawing Screenshot

It all comes down to treating others the way you would like to be treated. We learned that in Kindergarten and Sunday School. When you don’t, the legal trouble might be worse than missing snack time or nap time.

By the way, I’d also be careful how much you rip off from house designs online. (Did I say that out loud?). That came up in a telephone call this week too.

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7 Responses to “you really don’t own that”

  1. ted rusnak Says:

    Soooo, you haven’t had your stamp cut out of a drawing, repasted onto some “design” you’re not aware of and then have a building department call you to ask what the heck you’re thinking?
    (I sued, I won).
    Or a client who adamantly refuses to sign a contract but wants the “rights” to the drawings….because they helped. This so they can build the single design in several different locations!
    (All conversations ended that day)
    I’ve made it a policy to spend as much time as necessary to ensure that every new client understands the obligations we have to each other and the responsibilities. It does take a lot of work to do what we do and most folks don’t actually see even a small percentage of what we do.
    Thanks for at least broaching the subject. t

  2. FiELD9arch Says:

    Another great post Lee.

    I, like you, make no claim to being a lawyer, but it is my understanding that the act of committing an design to paper (or the computer screen) copyrights that design to the author. Regardless, it makes good sense to make that point clear with the clients.

    Regarding you last point, on the rare occasion i get called about doing a residential project, it is invariably by a contractor who has a client who already has “plans”. They just need to have them “adjusted” slightly and maybe a couple of details. The first thing i always mention is that if they came from a plan service, i cannot work on them unless they purchased the plans with the copyright release. For some reason, i never hear back from them.


  3. I’ve never read this simple concept described so clearly. Kudos. All my agreements with clients spell out this “Instrument of Service” concept. But the public doesn’t get it, since the meal you describe takes less than an hour prepare…the built project infinitely longer. By the time a client or builder gets peeved at our service, they have totally forgotten the notion that drove the relationship.

  4. Steve Says:

    Lee, One other way you can put that is when buying a book. You of course own the book but not the information that is with in it. You cannot take that information and go write another book. I would not suggest making copies of it and selling it either.

  5. arcadtect Says:

    Excellent article. I constantly have to tell people we provide a service and they do no own the drawings or design (unless previously agreed upon in the contract)


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