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.
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Sean Catherall AIA
Murray UT
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Original Message:
Sent: 05-03-2023 09:22 AM
From: Kevin Stewart
Subject: Releasing Intellectual Property Rights per request of Restaurant Owner
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).
Proposal:
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?
Best,
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Kevin Stewart AIA
Manuel Commercial
Lafayette LA
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