you really don’t own that
14 August 2014
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).
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.
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.
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.