Architects and Copyrights - Who Holds the Rights in the Design of a Building?

I have a confession to make: I like houses. I remember an old Arlo and Janis cartoon, in which they respond to a bad day by pulling out the plans for their dream home, which they know they will never build, and add another elaborate room to it: that’s me. And so I greatly enjoy this blog about a couple’s attempts to build their dream home. Now normally, this would not be grist for this blog, for obvious reasons, but for one thing - in a post yesterday, they mirrored reality for me, touching on issues in a case I greatly enjoyed litigating recently, which was a dispute over the right to use plans drawn up by an architect who was subsequently terminated from the project. Given my interest in architecture and copyright law, this case was an absolute ball from where I sit. And in this blog post, the authors are astounded when they learn that the contract forwarded to them by their architect was, first, one sided in that it protected the architect but not the party retaining the architect, and, two, made the plans the property of the architect, even though the authors were paying for them. Their shock falls right in line with what I have always thought of as the three take aways from that recent case I handled. First, that the standard architecture contract, drafted by the architects’ trade group, is completely one sided, was drafted that way intentionally, and should never simply be signed off on, without changes, by anyone retaining an architect to design property for them. Two, that the most egregious part of that standard contract is that it gives all rights in the design of the building to the party designing it, the architect, rather than the person who should hold it, the one paying for that design. And three, that the consumers of the services, unless represented by counsel, don’t know any of this, would be shocked if they did, normally just sign on the bottom line to get the project started, and never learn this unless and until something goes wrong with the project. That standard contract should never be signed off on as is, without changes made to some of these more one sided terms. And at the end of the day, for purposes of this post, it is simply fun to find these truths documented by this couple’s experience, discussed in their blog.
Written By:David Sucher On April 26, 2007 1:06 PM

I too have been following the Dream Home blog with fascination...like watching an acquainatnce walking a tight-rope with eyes closed.

And I was particularly interested in the whole discussion of "ownership" of the drawings. Over the years I have hireed many architects and that clause has always annoyed me as I usually have a large and very productive contribution to the design. So "the design" is in fact very much mine.

But I gave up arguing about the whole re-use of plans business because I found a non-issue. First of all, you can't copyright a floor-plan. Second, rarely, if ever, re-uses plans exactly as originally drawn. It just doesn't happen. So why argue about it? Most urban commercial buildings are so "one-off" that it makes no sense to make it an issue.
Third, if you do have a design -- say a small commercial building which could simply be adapted to another site with only re-arrangement (if that) of parking etc and utilities, a smart architect -- the one who did the original plans -- will charge only the real, legitimate cost of re-drawing. If they don't, they have lost a client and you march merrily down the road to a new architect and have them re-draw it, changing only enough to make sure that architect # 1 has no legal much less moral case.

I just see it as an ego-driven non-issue. Where am I wrong?

Written By:Eugene Mattingly On October 21, 2007 8:24 PM

Where am you wrong?
The drawings are the designers "instrument of trade"
I realize that the entire subject of intel/prop is a rapid evolving area, in that each new case tends to alter the conditions for the next case.

It has always been the tradition to license the builder or owner a one time use of the designers property. It even protects the builder/owner from someone else duplicating their stucture.

It is not as one-sided as it appears.

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