Custom Residential Architects Network

This message has been cross posted to the following Discussion Forums: Custom Residential Architects Network and Small Project Practitioners .
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About eight years ago, I designed a huge renovation and addition to an old house here in Rockville, MD.  I was paid for the work through Schematic Design, and the Owner stopped the project.  At the time, he told me he wanted to continue the project when he had saved enough money for it.

Last week, I was driving through that neighborhood and saw that the project is under construction.  I reviewed the permit drawings at City Hall, and found that the design is nearly identical to the schematics I did.  There is no company name or architects seal on the permit drawings.

My question is: Does the Owner have a right to create construction documents and build a building based on my schematic design, if he paid for the schematic design?  

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Craig Moloney AIA
CEM Design
Rockville MD
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No Craig, I do not believe that others have the right to take our Schematic Designs, make minor changes (called under the Copyright Act as "Derivative Works") and produce the remainder of the project documents.  Because you remain responsible for the original design.  Have your legal counsel take a good look at the Copyright Act, Section 102, 17 United States Code.  That person who continued with your design may end up being investigated by the US Attorney and prosecuted in Federal Court for copyright infringement.  If you do not have it there now, it would be good, if in the future you had a clause in your Terms of Service that indicates that you are the copyright holder to what you create and that both parties agree that should the project not proceed through Construction Documents with you producing the work, that your design will Not be completed by others, including minor changes or derivative works. 

No one likes to pursue things like this, but at some point you have stand your ground and Not let people take from you the benefits of your creative abilities, maintaining all the legal liabilities inherent with your creation, then proceed with unauthorized and illegal completion with no input or control from you.  That is part of the "Health, Safety & Welfare" protection of the public and part of the reason Boards of Architecture all over the USA exist.  This situation is also why it is ill-advised for any architect to prepare schematics (or skimpy drawings) then allow their clients to let them do what they will with them (which is Not what you did; you appeared to have acted honorably).  For instance, what happens now, if during construction something bad happens?  Who is responsible?  You could be, at least in part, which may be legal, but hardly fair.  I wish you the best in this matter.

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Rand Soellner AIA
Architect/Owner/Principal
Rand Soellner Architect
Cashiers NC
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 Craig,

This has happened to me more than once; sometimes after schematics and sometimes after design development.  To simplify my life and practice, I've made the decision that as long as I've been paid for the services I've rendered,  it's not worth pursuing copyright infringement.  
However, I write a letter to my (former) client reinforcing what I put on the design development drawings - that they are not suitable for construction and that I am not responsible for what happens during construction.

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Robert Reinhardt AIA
Reinhardt Architects
Garrett Park MD
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I have had this happen to me also.  I always stamp my preliminary design drawings with a big red ink stamp "Preliminary - Not For Construction".  This only helps you if they use your design and something happens on the job and they want compenstation from you.  You could set up a sliding scale for payment with the highest cost up front for the design and less at the end for construction administration.

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Edward Cazayoux FAIA
Principal/architect
EnvironMental Design
Breaux Bridge LA
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Original Message:
Sent: 02-08-2012 12:31
From: Robert Reinhardt
Subject: Copyright Infringement?

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 Craig,

This has happened to me more than once; sometimes after schematics and sometimes after design development.  To simplify my life and practice, I've made the decision that as long as I've been paid for the services I've rendered,  it's not worth pursuing copyright infringement.  
However, I write a letter to my (former) client reinforcing what I put on the design development drawings - that they are not suitable for construction and that I am not responsible for what happens during construction.

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Robert Reinhardt AIA
Reinhardt Architects
Garrett Park MD
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I put a clause in my contract that says
"If the termination is due to unexpected delays or situations that are not the fault of the Client, Sun Plans may provide the Client with a one-time copyright release to use the work completed to date.  A fee may be associated with the copyright release under other circumstances. " On a few occasions, I have been the one to terminate the contract and have given a copyright release.

I have another clause that says:

"OWNERSHIP OF DESIGN

Sun Plans provides professional services to its clients, not a product. Design and Construction documents - drawings, specifications, research data, and reports whether on hard copy or electronic files - are instruments of that service; that is they are the written or graphic depiction of the intellectual process that is architecture or consulting.  As such, these documents should remain the property of the professional who conceived and prepared them. The prepared drawings and construction documents drawings belong to the architect or designer.  This Agreement allows the Client to build the home or structure one time.  The drawings may not be constructed from again nor given to anyone else without written approval from Sun Plans who maintains the right to reuse or modify the drawings for other projects. This is standard in the architecture/house design industry."

While I am not aware of anyone that has used my schematic or developed design on custom designed projects where construction drawings were not provided, I do know that people copy our work that is posted on the internet. I know because the home owner has on more than one occasion emailed us proudly to tell us about the home yet we received no payment.  With further inquiry I realize there is apparent innocence (ignorance?) and they typically claim that they could not use the design without changes therefore they redrew it with their own changes. To date I have not pursued litigation in such issues.

I think a mission of AIA could be to help education the general public on copyright issues especially in residential design.

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Debra Rucker Coleman, AIA
Sun Plans Inc.
Mobile, AL

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Original Message:
Sent: 02-06-2012 11:25
From: Craig Moloney
Subject: Copyright Infringement?

This message has been cross posted to the following Discussion Forums: Custom Residential Architects Network and Small Project Practitioners .
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About eight years ago, I designed a huge renovation and addition to an old house here in Rockville, MD.  I was paid for the work through Schematic Design, and the Owner stopped the project.  At the time, he told me he wanted to continue the project when he had saved enough money for it.

Last week, I was driving through that neighborhood and saw that the project is under construction.  I reviewed the permit drawings at City Hall, and found that the design is nearly identical to the schematics I did.  There is no company name or architects seal on the permit drawings.

My question is: Does the Owner have a right to create construction documents and build a building based on my schematic design, if he paid for the schematic design?  

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Craig Moloney AIA
CEM Design
Rockville MD
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This sounds like breach of contract - both verbal and written.  Call an attorney.  Also - it is a copyright infringement - something you are granted whether you put copyright notices on your drawings or not (it is stronger if you do and even stronger if you register them).  the thing about copyright infringmeent is that you can go after ANYONE who uses your work - the owner certainly but also the GC, electrician, tiles setter, etc.  Not that you would however it gives your attorney the leverage of letting the owner know that either they settle for fair compensation, or they face a lawsuit not only from you but all the trades too.

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Christopher Turley AIA
President
Turley Architects
Highland Park IL
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Craig:
I suggest taht this is a complex issue, you hav ebeen paid fro some pqrt of your work. does taht transfer any rights to the owner.
Rather than have all of us try to give you advise, much of which will be wrong. I suggest spending the few bucks for a legal consultation.

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Burton L. Roslyn, FAIA
President
Roslyn Consultants, LLC
Roslyn Heights, New York
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Original Message:
Sent: 02-10-2012 10:49
From: Christopher Turley
Subject: Copyright Infringement?

This sounds like breach of contract - both verbal and written.  Call an attorney.  Also - it is a copyright infringement - something you are granted whether you put copyright notices on your drawings or not (it is stronger if you do and even stronger if you register them).  the thing about copyright infringmeent is that you can go after ANYONE who uses your work - the owner certainly but also the GC, electrician, tiles setter, etc.  Not that you would however it gives your attorney the leverage of letting the owner know that either they settle for fair compensation, or they face a lawsuit not only from you but all the trades too.

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Christopher Turley AIA
President
Turley Architects
Highland Park IL
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