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Mariposa 1038 (Lorcan O’Herlihy Architects)

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The Retail and Entertainment Knowledge Community (REKC) fosters the creation, discussion, and dissemination of knowledge about the retail and entertainment environments among practitioners, clients, retailers, and the general public to advance the practice and improve the quality of retail and entertainment environments.

  • 1.  Releasing Intellectual Property Rights per request of Restaurant Owner

    Posted 05-03-2023 02:47 PM

    Does anyone have experience/advice in 'franchise' architecture? 
    Background info:
    We are a small firm and have a client who owns a local coffee shop.  Our design is his first 'prototype' store.  He wants to obtain the copyright to the design so he does not have to use our firm on every future store indefinitely.  Per our typical contract, our firm holds the copyright to the drawings, and we don't want to give the copyright to our wall sections and other detailing. The client understands that every Taco Bell looks the same and assumes there probably isn't one relationship between the franchise and an architect that licenses that design every time (I don't know how to validate that assumption).
    So we're considering putting together a package of 4 exterior elevations and the floor plan as a 'prototype' design that we release rights to so he owns the design (massing, materiality, form, etc of the shell and equipment plan & interior layout) and allowing him to purchase this for a one-time fee.
    Input requested:
    Without discussing particular fees, could anyone share either pros and cons of the proposal above (from a liability/legal standpoint, or otherwise), and whether you have experience in such ventures?  Any other suggestions of obtaining the goal of protecting our firm from liability (different codes in different municipalities, errors and omissions, etc) while allowing him to own the look of the building and flow of interior spaces?


    Kevin Stewart AIA
    Manuel Commercial
    Lafayette LA
    Safety Assessment Program Evaluator Training 2023, December 6 and 7. Earn 6.5 LUs HSW

  • 2.  RE: Releasing Intellectual Property Rights per request of Restaurant Owner

    Posted 05-04-2023 05:48 PM

    If you've watched Shark Tank, they sometimes request royalties. Every time they use your design (facade or layout), you get paid a negotiated amount. You retain the copyright. Your fee (royalty) is part of the franchisee's contract. I don't think you want to travel to every site where they may open another shop (time consuming for little career enhancement). Besides every municipality and site configuration would have its challenges.
    The real challenge is your client. He/She doesn't see long term value in your services. He/She just wants to enhance THEIR bottom line. Unlike in Casablanca, it doesn't sound like the beginning of a good friendship.
    Just my opinion.  Good luck.

    John M.(Jack) Ahern, AIA
    Tradition, PSL, Florida

    John Ahern AIA
    Ahern & Associates Architects, P.A.
    Tradition, Port St. Lucie FL

    Safety Assessment Program Evaluator Training 2023, December 6 and 7. Earn 6.5 LUs HSW

  • 3.  RE: Releasing Intellectual Property Rights per request of Restaurant Owner

    Posted 05-04-2023 05:52 PM

    This is a great question, and a common one so I'm glad you posted it for the group.

    In my opinion, your approach is right on.

    When approaching this work I've always approached it as a prototype or a location, the location is what you just did and the prototype is what you are proposing.  Depending on the scale the first location (like in your case) can become a prototype but it is critical there is a distinction in the work, ideally separate projects, one the location (which you retain control of, he cannot duplicate) and the second is the prototype which documents the look/feel not the construction/location. 

    For the prototype, I always do them as location agnostic.  Working with the Client generate a typical size and building type (main street, strip mall, indoor mall, lifestyle center ...).  Using the idealized scenarios develop the design(s) using generic components, for example you might specify a storefront type/look but you wouldn't provide a spec.  More specialized pieces like millwork you can provide generic designs meeting typical requirements that'd allow the client to use them as a basis of design but construction documents.

    Legally and to more directly answer your question (with no legal expertise) - Prototype work should never have a location, it should always be generic, and be focused on the design (look and feel) not construction, and obviously never be stamped.  The goal should be to give the client a document that expresses the look and feel but not the info he'd need to build a space because that is where the potential trouble could be.

    Ideally the Client likes working you and always comes to you for the next location so it never becomes an issue but this will allow him to "own" his brands look while also protecting you because within the prototype documents have nothing to do with the locality and/or construction of things.  

    and as a parting note, I always add on all pages "Not for Construction, For Design Intent Only."  

    Zachary Smith AIA
    Lee NH

    Safety Assessment Program Evaluator Training 2023, December 6 and 7. Earn 6.5 LUs HSW

  • 4.  RE: Releasing Intellectual Property Rights per request of Restaurant Owner

    Posted 05-04-2023 09:30 PM

    Your instincts are exactly correct.  I can tell you about my experience in retail, hospitality, and other "proto" projects.

    The clients I have dealt with in the proto world generally have a proto architect and implementation architects.  The proto architect develops one or more prototypical projects for a specific fee.  For an additional fee, they maintain the protos and work with the implementation architects.  In this situation, the client does own the documents.  

    In order to have a proto coffee shop, certain conditions have to be met.  Is your building a freestanding shop or a tenant space?  A tenant space will be more difficult to make successfully.  Will your proto be adaptable to a right and left-handed situations?  The landlord may have requirements to be compatible with the other tenants.  You'd be surprised to see how easily a proto can be adapted to various state and local codes.  

    If you are working with tenant spaces, a kit of parts would be helpful.  In that concept, you develop a restroom block, a kitchen block, a counter block, etc.  The pieces can be arranged and modified to fit within the space.  Again, the proto architects should manage and maintain that system also.

    Good luck with this opportunity.


    James Gallagher AIA
    James Gallagher Person
    Fayetteville AR

    Safety Assessment Program Evaluator Training 2023, December 6 and 7. Earn 6.5 LUs HSW

  • 5.  RE: Releasing Intellectual Property Rights per request of Restaurant Owner

    Posted 05-10-2023 04:33 PM

    The use of architectural prototypes is extremely common, in my experience, and I have been involved in a couple of procurement methods for prototype design:

    In the 1990's, I was an architectural coordinator for a Fortune 500 national retail company that owned multiple chains and was spending over $1B/year on construction. We contracted with several architects to create and document several prototype designs for our stores, which were essentially Schematic Design documents. Then, we contracted separately with those architects and others to perform site planning services and to adapt those prototype designs to site conditions for individual projects, based on local market variations, local building codes, soil conditions, environmental conditions, seismic conditions, zoning codes, planning commissions, design commissions, CC&R's, agreements with landlords and developers, prevailing local construction methods and economies, etc. The site adaptation architects developed their own Construction Documents and undertook the role of Architect of Record. Where possible, we favored using the same architect to adapt the same prototype multiple times in the same market to enable them to reuse as much of their previously-developed Construction Documents as possible, and negotiated for somewhat reduced fees in exchange for the volume of similar projects awarded. The contracts clearly stated that the design of the stores was owned by the owner and the Contract Documents were owned by the architects of record. This was typical of the chain retail design market at the time.

    Prior to that experience, and since that experience, I have worked with three small- to medium-sized architectural practices with a significant regional presence in K-12 school design. School districts and charter schools frequently believe it is advantageous to use prototype school design to use taxpayer funds as efficiently as possible and to shorten school development schedules. A fair amount of the time, a school district has asked my firm to design, document, and perform construction administration on a one-off school, with the idea that it will be used as a prototype for future schools. The fee structure, programming, and design phases were undertaken as a site-specific and prototype school process. However, the school districts were bound by state public procurement law, so they could not legally guarantee that all future iterations would be contracted with the original design firm. It was understood from the beginning, therefore, that the school district intended to reuse the design (not the construction documents) without providing the original design firm with any additional compensation. That fact was taken into account in the way the original design fees and contract terms were structured. Once again, the contracts stated that the Contract Documents belonged to the architect of record. Ownership of the design remains somewhat ambiguous in my mind--I was not privy to those contracts and I am aware that some "clones" were built in other school districts and I don't believe there was any exchange of funds over the design--making it appear that the design was considered to be in the public domain.

    While we, as architects, sometimes bluster about being fairly compensated for the use of our designs, I don't believe that any copyright on an architectural design has ever survived the American judicial system. We may succeed in intimidating an owner or another architect. We may refuse to play the game altogether. But our buildings are, in the end, no different than fashion or cuisine--in the sense that anyone can copy them without compensating us and get away with it. Knowing that at the outset, I believe our best move is to ask up front for a prototype design contract (separately or as a phase of another contract); and to protect ourselves by not allowing our Contract Documents to be copied or recycled unchallenged under any circumstances.

    Sean Catherall AIA
    Murray UT

    Safety Assessment Program Evaluator Training 2023, December 6 and 7. Earn 6.5 LUs HSW