Practice Management Member Conversations

This is totally theoretical - but if a firm is working on a project and bring it through to DD's and for what ever reason the client stops the project then restarts it with another firm does the client have the right to use the DD's and to give to the new firm and let them use them to continue the project?
Or - in another scenario - they decide to move or duplicate the project to another city and/or site - can they use the DD that the original firm produces for them?
Berry

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S. Jones AIA
Owner
S Berry Jones - Architects
Memphis TN
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DD is a part of the general requirements for any project which paid by the client, The ownership in this case back to the client and they have the right to use it in any manner it deems appropriate

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Maisara Al Rais
Kuwait Oil Tanker Co.
Planning & Controlling Manager
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Original Message:
Sent: 07-04-2012 13:30
From: S. Jones
Subject: Right to Plan Usage

This is totally theoretical - but if a firm is working on a project and bring it through to DD's and for what ever reason the client stops the project then restarts it with another firm does the client have the right to use the DD's and to give to the new firm and let them use them to continue the project?
Or - in another scenario - they decide to move or duplicate the project to another city and/or site - can they use the DD that the original firm produces for them?
Berry

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S. Jones AIA
Owner
S Berry Jones - Architects
Memphis TN
-------------------------------------------

Given the array of answers and comments offered here it is apparent that several misconceptions about the ownership of instruments of service exist.  As with any such issue, the answer is never particularly easy and as with most legal or quasi legal questions, it can't be reduced to ne hard, fast rule that always applies

The answer begins with the US copyright statue (that is a federal law and it applies in every state).  The copyright statute provides that the Architect is the author of the work product, and that the copyright cannot be transferred unless that transfer is evidenced by a written document.  Notably, most standard contracts address the Owner's need to use the work product not by transferring the copyright, but by licensing the Owner to use the work product, conditional on the Owner's payment of the fees (when the Owner pays the fees the Owner has the license - if the Owner never pays the fees, the Owner has no license).

It doesn't end there however.  The question of whether an Owner can use documents developed through a particular phase of the work with another Architect ins not so well settled.  Understand that the copyright statute was intended to add a cause of action where one would not otherwise exist.  For example, if a third party copies an Architect's documents or design and constructs a duplicate structure, that third party has received value for which no compensation was paid.  WIthout a contract between the Architect and the third party, there is no ability to bring suit or seek compensation.  The copyright statute was intended to fill that gap.  The Owner is different however since the Owner has a contract (express or implied) with the Architect.  If the Owner uses documents or design work in some manner inconsistent with the contract, the Architect has the right to sue the Owner.

The Federal Courts are not uniform on this answer.  Some circuits have concluded that the completion of the project for which the design and/or documents were intended is not a copyright infringement, but instead would be governed by the contract.  Others have concluded that it is in fact a copyright infringement.  The only answer again would therefore be to consult an Attorney knowledgeable in that area of the law in your region of the country.

That said, any replacement Architect must be extremely careful since the use of another's documents may not comport with the licensing laws in your state (unlike copyright laws, licensing laws are of course state based).  Most if not all states have a provision in their laws that prohibit an Architect from sealing documents no prepared by him or her or under his or her direct supervision and control.  That provision is generally construed to prohibit what is commonly called a "review and seal" (i.e.; reviewing another's documents and simply applying a seal).

A replacement Architect must also understand that they may be susceptible to a copyright infringement lawsuit by the first Architect even if the Owner isn't.  The best practice is to always contact the prior Architect and determine whether use of the documents is in some manner limited.  If it is, turn the matter over to the Owner and insist that the Owner address it before proceeding.  More often than not, you will find the first Architect is parting ways with the Owner for one reason - the Owner has failed or refused to pay all or part of the fee.  That of course engenders a more basic question.  If the owner refuses to pay the first Architect, why do you think they will pay you? 

Those circumstances will teach you a lot about your prospective Owner if you choose to learn the lesson. 




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Frederick Butters FAIA, Esq.
Attorney
AIA Detroit
Southfield MI
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The issues you raise are likely far more complicated than you might have thought they would be.  I can only offer a short version:

A client's right to possess and/or use documents is directly governed by the terms of the services contract you signed.  Contracts do not always (or clearly) define the situation you describe, but those that do customarily require the architect's written agreement for any use of your work product for any 'other' project (which would not include building on a different site, in a different city/state, etc.).  Additionally, a client's use of your work product is usually covered by a hold harmless provision that you (the original author) would not be held responsible for the outcome of any further use of the documents you prepared (once they leave your hands).  Even that language, however, does not necessarily address what would happen if your client paid you in full for the work performed 'to date' and then hired another architect to complete the 'same' project on the same site, etc. using your documents in substantially the form in which you created them.  For example, what if the client decided to use your documents, without your consent - does your contract state the 'penalty' for doing so?  If that is not clearly defined, then your probable recourse is only to sue (not likely unless this is a significant/major project) with an uncertain outcome. 

The more interesting (and important) question is the one that necessarily follows - and focuses on both legal and ethical considerations (for a 'subsequent' architect).   Every state has its own set of laws defining the practice of Architecture along with licensing requirements and provisions governing the 'behavior' of licensed practitioners.  In most states (at least all of those with which I am familiar) there is language that in some fashion requires the Architect of Record to have prepared the signed/sealed drawings by having exercised 'responsible control' of their creation.  Case law in most states clarifies that this means the Architect of Record cannot simply finalize prior-prepared documents by others (by way of relatively minor refinements or 'completion' of already-defined designs).  In order to have been in responsible control of the design of a project the Architect has to have been involved in the 'creation' of the designs (which includes all steps from initial concept through issuance for construction).  The reasoning behind that requirement is that along the way hundreds or thousands of important decisions have been made, each of which is the result of the application of a professional's accumulated knowledge skills and experience.  That is especially the case when considering all of the interaction and coordination that involves the entire team of consultants necessary to create competent DD's.  If the 'take-over' Architect was not involved in the making of those decisions he/she cannot be fully aware of all of the thinking that went into the creation of your theoretical DD's.  Unless the state in which the 'take-over' professional does NOT have similar provisions in its licensing laws, the only way your design concepts can be used is if the successor firm literally re-thinks the project from square one and prepares its own set of documents based on its own thinking/decision process.  That is not to say the take-over firm cannot use your 'paid-for' DD's to understand the client's objectives (as you interpreted them) to inform the new firm's own decision-making process.  There is not necessarily a fine line proscribing the extent to which the new firm can 'derive' ideas from your work and then create it's own version of the project.  But there are cases in which the general copyright test has been used to examine this question - that is, can the derivative work stand on its own as a unique design, or is it for the most part indistinguishable from the original. 

Moreover, we must all make decisions based on our own moral compass.  While the NCARB, the AIA, and most other design-related professional organizations all have their own 'ethical standards', they are not legally binding - so ultimately we must hold ourselves accountable if confronted with a situation that we feel is in any way inappropriate (including stepping on the toes of another professional that has been treated improperly or unkindly).  I know that even if I were allowed to re-use another architect's documents, I would decline to do so based on ethical considerations. 

Since I suspect your 'theoretical' situation may not really be theoretical, I hope you are successful at resolving your concerns with your client in a non-confrontational way.  It would seem you need to:  a) have a straightforward conversation with your client about your concerns, and/or;  b) speak with a local attorney experienced in this field for advice (based on your state's regulations) regarding potential remedies.


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Howard Littman AIA
Forensic Architect, Expert Witness
Howard I. Littman, AIA
Agoura Hills CA
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Great input - thanks to all. And it really is just theoretical, however, the client asked the question and I really did not know the answer.
Thanks again.

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S. Jones AIA
Owner
S Berry Jones - Architects
Memphis TN
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Original Message:
Sent: 07-05-2012 02:48
From: Howard Littman
Subject: Right to Plan Usage

The issues you raise are likely far more complicated than you might have thought they would be.  I can only offer a short version:

A client's right to possess and/or use documents is directly governed by the terms of the services contract you signed.  Contracts do not always (or clearly) define the situation you describe, but those that do customarily require the architect's written agreement for any use of your work product for any 'other' project (which would not include building on a different site, in a different city/state, etc.).  Additionally, a client's use of your work product is usually covered by a hold harmless provision that you (the original author) would not be held responsible for the outcome of any further use of the documents you prepared (once they leave your hands).  Even that language, however, does not necessarily address what would happen if your client paid you in full for the work performed 'to date' and then hired another architect to complete the 'same' project on the same site, etc. using your documents in substantially the form in which you created them.  For example, what if the client decided to use your documents, without your consent - does your contract state the 'penalty' for doing so?  If that is not clearly defined, then your probable recourse is only to sue (not likely unless this is a significant/major project) with an uncertain outcome. 

The more interesting (and important) question is the one that necessarily follows - and focuses on both legal and ethical considerations (for a 'subsequent' architect).   Every state has its own set of laws defining the practice of Architecture along with licensing requirements and provisions governing the 'behavior' of licensed practitioners.  In most states (at least all of those with which I am familiar) there is language that in some fashion requires the Architect of Record to have prepared the signed/sealed drawings by having exercised 'responsible control' of their creation.  Case law in most states clarifies that this means the Architect of Record cannot simply finalize prior-prepared documents by others (by way of relatively minor refinements or 'completion' of already-defined designs).  In order to have been in responsible control of the design of a project the Architect has to have been involved in the 'creation' of the designs (which includes all steps from initial concept through issuance for construction).  The reasoning behind that requirement is that along the way hundreds or thousands of important decisions have been made, each of which is the result of the application of a professional's accumulated knowledge skills and experience.  That is especially the case when considering all of the interaction and coordination that involves the entire team of consultants necessary to create competent DD's.  If the 'take-over' Architect was not involved in the making of those decisions he/she cannot be fully aware of all of the thinking that went into the creation of your theoretical DD's.  Unless the state in which the 'take-over' professional does NOT have similar provisions in its licensing laws, the only way your design concepts can be used is if the successor firm literally re-thinks the project from square one and prepares its own set of documents based on its own thinking/decision process.  That is not to say the take-over firm cannot use your 'paid-for' DD's to understand the client's objectives (as you interpreted them) to inform the new firm's own decision-making process.  There is not necessarily a fine line proscribing the extent to which the new firm can 'derive' ideas from your work and then create it's own version of the project.  But there are cases in which the general copyright test has been used to examine this question - that is, can the derivative work stand on its own as a unique design, or is it for the most part indistinguishable from the original. 

Moreover, we must all make decisions based on our own moral compass.  While the NCARB, the AIA, and most other design-related professional organizations all have their own 'ethical standards', they are not legally binding - so ultimately we must hold ourselves accountable if confronted with a situation that we feel is in any way inappropriate (including stepping on the toes of another professional that has been treated improperly or unkindly).  I know that even if I were allowed to re-use another architect's documents, I would decline to do so based on ethical considerations. 

Since I suspect your 'theoretical' situation may not really be theoretical, I hope you are successful at resolving your concerns with your client in a non-confrontational way.  It would seem you need to:  a) have a straightforward conversation with your client about your concerns, and/or;  b) speak with a local attorney experienced in this field for advice (based on your state's regulations) regarding potential remedies.


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Howard Littman AIA
Forensic Architect, Expert Witness
Howard I. Littman, AIA
Agoura Hills CA
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It depends on how the agreement with the client addresses "ownership" of the design documents. Usually, the architect is the author and owner of the Instruments of Service (see Section 7 of AIA B101) but the client could likely use them, including sharing with another designer, subject to indemnification of the author and payment of outstanding fees and expenses. This situation warrants some kind of compensation, maybe through termination expenses.

I don't know about other states but Texas allows an architect to use another's prototypical design work, provided that the architect reviews the documents, assumes full responsibility and seals them separately.

Sometimes the architect relinquishes ownership by contract, which is often the case with government clients. In that event, it is really important to be sure that you are protected against someone else's modification of your design and/or documents that could turn into a claim against you if something goes wrong.
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William McCord AIA
President
WKMC Architects, Inc.
Corpus Christi TX
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Original Message:
Sent: 07-04-2012 13:30
From: S. Jones
Subject: Right to Plan Usage

This is totally theoretical - but if a firm is working on a project and bring it through to DD's and for what ever reason the client stops the project then restarts it with another firm does the client have the right to use the DD's and to give to the new firm and let them use them to continue the project?
Or - in another scenario - they decide to move or duplicate the project to another city and/or site - can they use the DD that the original firm produces for them?
Berry

-------------------------------------------
S. Jones AIA
Owner
S Berry Jones - Architects
Memphis TN
-------------------------------------------

As Mr. Littman stated, the contract should provide a basis for determining what rights belong to whom. Generally, DD documents are still "Instruments of Service," with or without a seal and signature. If the architect's rights to Instruments of Service are defined, then the documents are protected as such.

But sometimes the situation is not so black and white. I've received projects because a previous architect who provided service up to DD was subsequently fired by the Owner, who then asked me to finish the project. I ALWAYS requested permission from the previous architect to use their design work, and, if given permission, scrutinize the work more carefully than I would normally check my own work (which is a lot!). I've also received jobs where a commercial project design was prepared by an unlicensed individual. Normally, I wouldn't even accept such work unless I know the designer personally. Usually, the design requires substantial redesign anyway. In this case though, I don't feel the need to request permission--the unlicensed individual shouldn't have been engaging in commercial design in the first place. As long as they are not holding themselves out as an Architect, I roll with it, but typically my fee proposal is probably more than if I were designing it from scratch due to potential additional liability.

Always check the circumstances and the client. If it's a case of poor services from the original architect, I want to help the client and secure them as a repeat client. If it's just because the client is a cheapskate and is trying to save money on design fees, I probably don't want that client anyway.

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David Clarke AIA
President, AIA Southern New Mexico Chapter
Senior Architect, Williams Design Group, Inc.
Las Cruces NM

Original Message:
Sent: 07-04-2012 13:30
From: S. Jones
Subject: Right to Plan Usage

This is totally theoretical - but if a firm is working on a project and bring it through to DD's and for what ever reason the client stops the project then restarts it with another firm does the client have the right to use the DD's and to give to the new firm and let them use them to continue the project?
Or - in another scenario - they decide to move or duplicate the project to another city and/or site - can they use the DD that the original firm produces for them?
Berry

-------------------------------------------
S. Jones AIA
Owner
S Berry Jones - Architects
Memphis TN
-------------------------------------------

It Depends.

It depends on the form and extent of the owner-architect agreement.  If the agreement treats the design / documents as "instruments of service", then the answer is "not without discussion (at least), releases of liability, and possible additional compensation."

If you're the original firm, and another firm takes the project over, it would be a Good Thing for the owner and firm #2 to agree to take on all liability for the continuing use of your design concepts, and to indemnify you if something goes wrong.  It would also be a good idea for you to specifically bring the change to the attention of your insurance carrier.  Matter of fact, ask them for their suggested language to deal with this.

For the use in another city/site/(state), the usual AIA agreements are intended for one-off projects.  The documents are just part of getting the project built.  You didn't undertake to create "stock plans", did you?  If your design is being using in another state, and you're aware of it and are not registered there, it might not be a bad idea to contact the registration board in that state and just tell them "We've heard that drawings we prepared for XYZ project in Tennessee may be being used for ABC project in your state.  We just want you to know that we are not involved in that reuse, or that project, and that, as non-registrants in your state, whatever is going on should not be considered as practice of architecture by us in your state."  Copy your insurer on that one, too.

The more business-like you can treat what is going on, and the less "why didn't you come back and do work with us again", the fewer feathers will be ruffled, and the easier it will be to forget that you were done wrong.

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Joel Niemi AIA
Snohomish WA

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Original Message:
Sent: 07-04-2012 13:30
From: S. Jones
Subject: Right to Plan Usage

This is totally theoretical - but if a firm is working on a project and bring it through to DD's and for what ever reason the client stops the project then restarts it with another firm does the client have the right to use the DD's and to give to the new firm and let them use them to continue the project?
Or - in another scenario - they decide to move or duplicate the project to another city and/or site - can they use the DD that the original firm produces for them?
Berry

-------------------------------------------
S. Jones AIA
Owner
S Berry Jones - Architects
Memphis TN
-------------------------------------------

I see a lot of focus on the AIA Owner-Architect Agreement and little on the Federal Copyright Law of 1990 which grants the copyright to the originator of the design - Period.   That's why the AIA Agreements addresses continued use after contract termination - the Owner's right to use the 'instruments of service' (drawings specs emails sketches) ceases and any use thereafter, including showing the present set of documents to another design professional, is prohibited without the consent of the Architect.

If you are writing some kind of contractual provision to waive your federal law copyright I think you probably need legal advice.

If you are writing a contractual amendment to grant the use of the 'instruments of service' after proper termination of the Agreement, subject to various requirements (paying of invoices, indemnification, etc.) I think that's a much better solution than attempting to transfer the copyright.

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Jeffery Clarke AIA
T. Jeffery Clarke Architect LLC
Princeton NJ
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Original Message:
Sent: 07-05-2012 14:36
From: Joel Niemi
Subject: Right to Plan Usage

It Depends.

It depends on the form and extent of the owner-architect agreement.  If the agreement treats the design / documents as "instruments of service", then the answer is "not without discussion (at least), releases of liability, and possible additional compensation."

If you're the original firm, and another firm takes the project over, it would be a Good Thing for the owner and firm #2 to agree to take on all liability for the continuing use of your design concepts, and to indemnify you if something goes wrong.  It would also be a good idea for you to specifically bring the change to the attention of your insurance carrier.  Matter of fact, ask them for their suggested language to deal with this.

For the use in another city/site/(state), the usual AIA agreements are intended for one-off projects.  The documents are just part of getting the project built.  You didn't undertake to create "stock plans", did you?  If your design is being using in another state, and you're aware of it and are not registered there, it might not be a bad idea to contact the registration board in that state and just tell them "We've heard that drawings we prepared for XYZ project in Tennessee may be being used for ABC project in your state.  We just want you to know that we are not involved in that reuse, or that project, and that, as non-registrants in your state, whatever is going on should not be considered as practice of architecture by us in your state."  Copy your insurer on that one, too.

The more business-like you can treat what is going on, and the less "why didn't you come back and do work with us again", the fewer feathers will be ruffled, and the easier it will be to forget that you were done wrong.

-------------------------------------------
Joel Niemi AIA
Snohomish WA

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Original Message:
Sent: 07-04-2012 13:30
From: S. Jones
Subject: Right to Plan Usage

This is totally theoretical - but if a firm is working on a project and bring it through to DD's and for what ever reason the client stops the project then restarts it with another firm does the client have the right to use the DD's and to give to the new firm and let them use them to continue the project?
Or - in another scenario - they decide to move or duplicate the project to another city and/or site - can they use the DD that the original firm produces for them?
Berry

-------------------------------------------
S. Jones AIA
Owner
S Berry Jones - Architects
Memphis TN
-------------------------------------------

Just to clarify specifically, the language in the B105 states under Article 3:

"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."

Keep in mind here, termination for convenience ('just because the Owner says so') is not a viable option under this Agreement.

Therefore, an Owner who transmits drawings, specs, sketches, etc. by an Architect with whom he/she has entered into an AIA B105 Agreement to another person (for instance, another Architect) represents that he/she has the original Architect's permission to do so, even if that Architect (for whatever reason) is no longer engaged on a project from the Owner's perspective, because the copyright is automatically granted under Federal law.   If that permission has not been granted, the Owner could be liable to Breach of Contract, which would be a lot easier (and more typical) to pursue than a copyright suit against the Owner or new Architect, which by definition must be in the Federal court system (read:  expensive and time consuming).

By the way, you might be interested to know that the AIA testified in Congress against the inclusion of architectural works in the 1990 law.

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Jeffery Clarke AIA
T. Jeffery Clarke Architect LLC
Princeton NJ
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Original Message:
Sent: 07-06-2012 09:04
From: Jeffery Clarke
Subject: Right to Plan Usage

I see a lot of focus on the AIA Owner-Architect Agreement and little on the Federal Copyright Law of 1990 which grants the copyright to the originator of the design - Period.   That's why the AIA Agreements addresses continued use after contract termination - the Owner's right to use the 'instruments of service' (drawings specs emails sketches) ceases and any use thereafter, including showing the present set of documents to another design professional, is prohibited without the consent of the Architect.

If you are writing some kind of contractual provision to waive your federal law copyright I think you probably need legal advice.

If you are writing a contractual amendment to grant the use of the 'instruments of service' after proper termination of the Agreement, subject to various requirements (paying of invoices, indemnification, etc.) I think that's a much better solution than attempting to transfer the copyright.

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Jeffery Clarke AIA
T. Jeffery Clarke Architect LLC
Princeton NJ
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Original Message:
Sent: 07-05-2012 14:36
From: Joel Niemi
Subject: Right to Plan Usage

It Depends.

It depends on the form and extent of the owner-architect agreement.  If the agreement treats the design / documents as "instruments of service", then the answer is "not without discussion (at least), releases of liability, and possible additional compensation."

If you're the original firm, and another firm takes the project over, it would be a Good Thing for the owner and firm #2 to agree to take on all liability for the continuing use of your design concepts, and to indemnify you if something goes wrong.  It would also be a good idea for you to specifically bring the change to the attention of your insurance carrier.  Matter of fact, ask them for their suggested language to deal with this.

For the use in another city/site/(state), the usual AIA agreements are intended for one-off projects.  The documents are just part of getting the project built.  You didn't undertake to create "stock plans", did you?  If your design is being using in another state, and you're aware of it and are not registered there, it might not be a bad idea to contact the registration board in that state and just tell them "We've heard that drawings we prepared for XYZ project in Tennessee may be being used for ABC project in your state.  We just want you to know that we are not involved in that reuse, or that project, and that, as non-registrants in your state, whatever is going on should not be considered as practice of architecture by us in your state."  Copy your insurer on that one, too.

The more business-like you can treat what is going on, and the less "why didn't you come back and do work with us again", the fewer feathers will be ruffled, and the easier it will be to forget that you were done wrong.

-------------------------------------------
Joel Niemi AIA
Snohomish WA

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Original Message:
Sent: 07-04-2012 13:30
From: S. Jones
Subject: Right to Plan Usage

This is totally theoretical - but if a firm is working on a project and bring it through to DD's and for what ever reason the client stops the project then restarts it with another firm does the client have the right to use the DD's and to give to the new firm and let them use them to continue the project?
Or - in another scenario - they decide to move or duplicate the project to another city and/or site - can they use the DD that the original firm produces for them?
Berry

-------------------------------------------
S. Jones AIA
Owner
S Berry Jones - Architects
Memphis TN
-------------------------------------------