Well hopefully you are using the AIA B101 which covers this issue in Ownership of Design Documents.
" With the ever‐increasing evolution and expansion of electronic design "documents" and their corresponding ease of transfer and replication, true control over design documents has become increasingly elusive. At the same time, owners increasingly start with the contractual premise that they own all of the design documents prepared for their project. This runs contrary to both default legal principles and historical and present contract models which would have the design professional retain and control the copyright in its design.
The traditional approach continues to make sense.
The AIA B101 is a good model for these purposes. Under that approach, the design professional retains all ownership of its design and the client received a license to use the design for construction of the subject project. The latter is further contingent on the client's payment of all fees and costs due under the agreement.
A consolidated version of the key AIA clauses would provide:
{ Consultant shall be deemed the owner of its Instruments of Service, including the Plans, Drawings and Specifications, and shall retain all common law, statutory and other reserved rights, including copyrights. Consultant grants to the Client a nonexclusive license to use the Instruments of Service solely and exclusively for purposes of constructing, using, maintaining, altering and adding to the Project,
provided that the Client substantially performs its obligations under this Agreement, including prompt payment of all sums due hereunder. [Based on §7.2 & 7.3] }
Where there must be transfer of ownership of the final design documents due to client demands or other requirements, it should still be subject to much of the foregoing and a little more.
Specifically:
1. Any acquired rights should be limited to use for the specific project;
2. It should be expressly contingent on payment of all fees and expenses;
3. It should release, indemnify, and hold harmless the design professional for any unauthorized use; and it should retain the design professional's right to continued use of the component elements (i.e. details, specifications, etc.) as a part of its ongoing practice.
The last element is the most unique and most seldom included element of these four objectives. Such a clause might provide:
Notwithstanding any other provision, Consultant shall retain all rights of ownership and use of its skills, knowledge and experience that have a general applicability, including such skills, knowledge or experience gained by Consultant in connection with performing services for the Project. Such knowledge and experience includes, but is not limited to standard arrangements and configurations, individual standard features, details, and design elements, specifications, general notes, and design templates.
Such a preservation of intellectual capital is critical to the ongoing evolution and progress of any design practice."
Sounds like a fun project. Make them interesting.
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Paul Richards
Seattle WA
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Original Message:
Sent: 04-04-2019 18:15
From: J. Mark Barry
Subject: Fee structure for house plans that will be used for a 300 home development.
How do you establish a fee structure for the design of 5 single family homes that will be built 70 to 80 times each for a large development?
License fee, use fee???
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J. Mark Barry AIA, NCARB
Architect/Owner
Barry Bull Ballas Design, Inc.
Dallas TX
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