This is obviously a timely issue. A few things to understand about the Copyright Statute;
1. The Architect owns the copyrights by virtue of the fact that the Architect created the work. Period. The only way to transfer that right is in writing. Even if you provide CAD files, you still own the copyright unless you sign a written document that transfers those rights away. The AIA documents address ownership of the intellectual property (the copyright) and they provide for the same result, but they don't really need to since the statute itself provides that same result. Unless you sign a contract or a written transfer that gives away your copyright, you own it. Period.
2. It doesn't matter what sort of contract your client signs. While that create a management issue for you (it may be hard to deny your client if they ask for CAD files because they are required to hand them over), it technically isn't your problem - at least not in the legal sense.
3. You are never bound by the contract that your client signs with another, unless you sign that contract, or unless your contract with your client binds you to those terms. Always read and negotiate your contracts very carefully.
4. CAD files are your work product, and you can't change that. Simply put, giving others your work product in a manipulable form can cause liability issues. Stripping out your title block or other identifying information as some have suggested does not change the fact that the CAD files are your work product.
5. Indemnification or hold harmless agreements as many suggested are fine, but aren't a defense. If you give CAD file to a client, an indemnification or hold harmless agreement from the client will not stop others from making a claim against you. If they do, you can demand the client indemnify you or hold you harmless. If the client refuses (or as is more common, lacks the financial ability to defend you) you still have to defend yourself and pay any judgment you may lose. You might be able to recover that loss from your client, but you can't avoid the liability with an indemnification or hold harmless - that is simply an agreement pursuant to which someone else agrees to pay any loss you may incur due to their use of your work product - it does not and cannot defeat the primary liability.
6. Understand also that many states place limits on the extent to which a party can be indemnified or held harmless. While indemnification or hold harmless agreements are created by contracts and are generally enforceable, many states do not permit someone for seeking indemnification for their own negligence. Therefore, if someone alleges they were injured by your negligence as reflected in your CAD documents, you may find your indemnification / hold harmless agreement is void under the law of your state.
7. Adding limiting language, "not for construction", etc. helps for sure, but it doesn't fully solve the problems.
As with many aspects of the law, things are interconnected and often are not what they may appear (not different than the building code). Someone not familiar with the building code may read a few sections and draw a few conclusions which may not be well founded. That is why we have Architects. Likewise, reading a contract or a section in a statute book may cause one to draw an improvident conclusion. That is why we have Attorneys. There are times to consult both. This is a time to consult an Attorney as no one answer will fit every state or every project
The best advice is to consult your insurance carrier and an Attorney familiar with the law in your state and work out a strategy consistent with that law.
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Frederick Butters FAIA, Esq.
Attorney
AIA Detroit
Southfield MI
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