Michael,
That's a difficult situation to be in. I'd like to propose a potential solution for this sort of situation. Cut that line of thinking right off - as licensed professionals, they are not entering into an employee or subcontractor relationship, they are partnering with an equal, a peer. (Actually, they are aguably subordinates because they don't have the knowledge or experience to take responsibility for the numerous life-safety issues that we deal with, any more than they could take responsibility for the work of a surgeon they might pay for. But I don't expect that this approach would win over many clients...)
(A snarky response to the "work for hire" issue might be, "are your lawyers and accountants working on a work-for-hire contract?" Again, this might not go over very well...)
In the case of an electronics firm, they might understand that we as Architects are something like a "fabless" chip company. Where companies like Intel both design their chips and own the fabrication plants ("design build" in our field), architects are more like ARM Holdings. What we do is more like the iPhone processor - it's primarily ARM's design (the "architects"), made in Samsung's chip fab plants (the "contractor") and used by Apple (the "building owner"). While the analogy gets messy in some details, it's close enough because we, in fact, provide one-off, customized solutions for clients, and we allow building owners to go in and modify buildings after they are complete, something no chip or electronics firm would allow.
While a client probably should be able to "own" certain aesthetic aspects of a design (i.e. the distinctive 70's McDonalds "restaurant" form/colors/design) if they pay the designer for that extra service, they really shouldn't be allowed to think that they could "own" the technical or life-safety professional work. Using the medical analogy, I might "hire" a surgeon to remove a tumor, but I'm not qualified to "own" the particular mix of anesthetic drugs used, the particular location or length of the incision made or the unique set of sutures used to close that incision.
With the rise of Intellectual Property maximalists in many industries, this "work for hire" issue is going to be a growing problem for Architects and Engineers. ("IP" maximalists encourage the biggest fish to claim they own everything, always, forever and sue over everything - makes lots of work for lawyers. Currently, JRR Tolkien's estate is suing people who even mention the name "Tolkien" in things like bumper stickers, which is a heck of a stretch of the law as I understand it, but what is a little bumper sticker company going to do?) Despite the wording of Article I, Section 8, Clause 8 of the Constitution, which sets a "limited time" for copyright and patents, every time the copyrights on early Mickey Mouse cartoons are about to expire, Disney pays congresspeople to pass a new law extending copyright. Maybe the next time that is up, the A/E professions could get something in law which carves out certain aspects of our professional services from any "work for hire" arrangement? Actually, we should probably be working with other life-safety professions to do this on a state-by-state basis, and at a federal level if possible.
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Thomas H. Donalek, AIA
Chicago IL
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Original Message:
Sent: 02-25-2011 10:25
From: Michael Van Goor
Subject: Turning over a project to another architect
My comments below do not address turning a project to another architect, but giving up files & copyright to a client.
Just 2 weeks ago, I was asked by a potential client to amend my contract to omit my copyright provisions and insert a 'Work For Hire' contract, explaining their company always uses this type of contract. They were in the software/circuit board industry where this type of contract is common - when someone is hired to write source code or design a circuit board. The hiring company owns the work, preventing the person 'hired for the work' from then taking any ideas, and approaching/selling them to another company. Basically, the potential client was adamant that they not only receive a modifiable set of electronic CAD files, but also own the copyright in its entirety. This would allow them to not only modify the drawings and/or build future structures without my consent or compensation, but also sue me if I ever used any elements - say a grouping of windows - in another project. As my attorney told me, while this was probably not their intention, it exposed me to a great amount of liability, and could potentially hinder my ability to practice architecture.
Despite trying to explain why the 'Work For Hire' contract was not appropriate for the type of work architects perform, I received an email informing me that they decided to work with another architect - someone who was willing to freely give up their work. This was especially hard, because in this economy, every project is essential. Upon reflection over the past weeks, I realize that although this experience cost me a few dollars for the good advice of a trusted attorney (and repeat client as well), it saved me so much more.
I believe that as architects, we need to think outside the box often times to fulfill our clients expectations (and satisfy our own needs too), moving outside our comfort zones and taking risks at times. But it doesn't mean that we have to sacrifice who we are and give up what we do.
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Michael Van Goor AIA
Van Goor Architects, Inc.
Ann Arbor MI
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