Protection Plan

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There is a common occurrence that all kitchen and bath designers share, but not all want to talk about. Some want to pretend it doesn’t happen, others admit that it happens but do their best to shrug it off, and a few speak out about how it makes their blood boil. This common thread is going through the experience of creating a design for a customer, only to have that customer take the design elsewhere to have the work done.

According to Susan Serra, CKD, principal, Susan Serra Associates, Inc., in Northport, NY, there is a phenomenon amongst clients who, at the start, so carefully choose a designer, pay a hefty design retainer and admire the designer and enjoy the design process. “Then, once the design is finished, the designer becomes expendable,” she explains. “There is no more need for the creativity, and the piece of paper becomes a commodity to be sold to the lowest bidder. The client slowly disconnects, communication slows and we know what happens next.”

There are courses of action that designers can take to help prevent this from happening, both legal and practical.

On the legal side, Congress enacted the Architectural Works Copyright Protection Act of 1990 (AWCPA) into law almost 17 years ago. While many architects are aware of the act and their rights under it, most kitchen and bath designers have no idea that the act exists or that it offers them protection as well.

The statute defines an architectural work as “the design of a building as by any tangible medium of expression [including plans, buildings or sketches].” A work’s overall form and individual arrangements and combinations are also protected under this act.

In simpler terms, design elements and the overall creative design are protected under the act, but functional design elements, such as a doors and windows, are not. Also, an idea is not protected, but an expression is. The idea only becomes protected once it is constructed or put down on paper.

The designer does not need to do anything special to protect his or her plans or designs, as the copyright exists as soon as the sketch is made. While the owner of the design is designated as the person who actually creates the work, if that person is employed by a company, the company owns the copyright.

Many designers – and clients as well – are under the assumption that once a fee is paid by the client, ownership of the plans is transferred to the client. But this is a false assumption. The fee paid by the client is for use of the plans and design – the client does not own the plans. Client ownership only occurs via written consent from the designer.

To add to their level of protection, designers and architects can file their designs with the Library of Congress for a nominal fee.

As far as interpretation, the law does have some gray areas.

“When you get into the area of what constitutes a copyrightable design element or design itself, it’s remarkably controversial,” comments Jim Myers, owner, GTM Architects, in Bethesda, MD. “There are elements to the design and little details that are original or unique, but it’s so hard to prove and make them your own. I mean, how can you say that you own a column detail and that no other architect can use it?”

While there are some issues with it, the biggest problem is not with the law itself, but with policing it, according to designers. After all, how can a designer prove that someone took their design and built the kitchen or bath without them? It just isn’t possible.

To help with policing the situation, many designers make it a policy to never pick up where another designer left off.

“As a company, Ulrich Inc. will never bid someone else’s plans,” stresses Alan Asarnow, CMKBD, CR of Ulrich Inc., in Ridgewood, NJ. He adds that if every designer took this approach, it wouldn’t matter what clients did with their plans. “But, there are always people who are willing to skate on someone else’s effort,” he remarks.

Making this a practice is not only not advisable, it can be downright dangerous for the designer or architect, who gets put in the position of copyright infringement. If a designer plans to pick up where another left off, it is advisable to contact the prior designer to get permission – in writing – to use any drawings.

Put it in Writing

Designers and architects agree that it is important to have everything in writing for when a situation goes wrong. They use a range of wording in their contracts and plans to protect themselves against theft – or in case of it.

Though no special filings are required, many in the legal copyright field advise designers to include a copyright statement on all documents, such as “Copyright ©2007, by John Doe.”

Asarnow notes that Ulrich Inc. stamps the copyright and the date on the plan right near where the client places a signature. “Saying it at least puts the client on notice that you’re thinking about protecting yourself,” he explains.

GTM Architects’ agreements all state that the architect owns the work product, the drawings, the design, etc.

Many designers and architects go a step further to protect themselves by not releasing the plans to the customer. It should be stated in the design agreement that no printed copies of plans will be given out, notes Ben Thompson, CGR, of Thompson Remodeling, Inc. in Grand Rapids, MI. “Of course, then you need to follow through and not give out drawings; instead, invite people to come into your office to see the plans as many times as they’d like,” he says.

Thompson also stresses that plans should be stamped with wording such as “property of Thompson Remodeling, Inc. Not for construction.”
“If this is done, people feel like they’ve gone through a valuable experience, they are more likely to work with us, and there is no issue about Errors & Omissions,” he comments.

Errors & Omissions charges that something was done incorrectly for a client, or the designer did not do something that would normally have been expected to be done in the course of business events, including mistakes and omissions.

Using AutoCAD drawings opens up this area of concern, as well, stresses Myers. “People ask for AutoCAD drawings as well as hard copies of plans today,” he comments, “but by handing those over, you have the problem of not only someone using your design, but having someone change your design and messing it up. When that happens, there’s liability. That person is going after whoever he or she can, and all of a sudden you’re being pulled into a lawsuit.”

But Bruce Curtis of Washtenaw Woodwrights, Inc. in Ann Arbor, MI stresses that this should not deter designers and architects from using computer-aided design as there are so many positives, including the avoidance of dispersing written plans. “You can sit with clients in front of a computer, and show them 3-D renderings and elevations while you are working with them,” he offers. “You aren’t working with paper, so there is no temptation to give them paper at the end of the meeting. Clients love the 3-D modeling, and the process keeps them coming back for more project visualizing.”

Paid Protection

Most kitchen and bath designers and architects agree that, if they’re going to give plans to the client, the best way to protect themselves from design theft is to only release the plans after payment of a retainer.

As a design/build remodeling company for 30 years, Len McAdams of McAdams Builders, in Kirkland, WA, stresses that the bottom line for his company is “Get paid first. We’ve tried any number of ways to ‘protect’ our work, and our designers do not work without contracts and deposits.”

Ulrich Inc. asks for a significant project development fee when beginning the design process, “which means clients are paying us to develop their project,” Asarnow stresses. “We are very specific in explaining that they are not buying plans.” He adds that, when the clients do ultimately contract with the company for the execution of the plan, the plans, drawings and written specifications will become available to them. “Until that time, the plans are in our possession, and we own them.”

Asarnow notes that the project development fee accomplishes a number of things. “People have shown, with their checkbook, that they are at least somewhat committed to you, and therefore you’ll want to do your best work for them. It’s hard for someone to walk away from several thousand dollars, and that’s how you protect yourself.”

Jim Krengel, CMKBD, of Krengel Presentations, in St Paul, MN agrees that every design firm must charge a fee or retainer for their plans.

However, he adds that once this has been accomplished, the plans should be turned over to the clients to use them as they wish.

“If I have done a good job designing and developing the concept for them, chances are I will sell them anyway and it will become a moot point,” he offers. “If I keep the plans, I risk alienating the client (even though they aren’t buying from me at this point), and I risk their future good will. If I give them the plans they have paid for and they go elsewhere and have a bad experience, they’ll be sorry they didn’t work with me. On the other hand, if I kept the plans and made them start the process all over again with another firm, I have no good will with this customer. I think by doing the right thing I am cultivating future business and good will,” he adds.

Other designers aren’t so quick to take this view, however, and cite various strategies they use.

Delia Perez , sales/designer of The Kitchen and Bath Factory in Signal Hill, CA, notes that, when her company proposes a design agreement to the client, the company asks for a design retainer fee that engages the company to prepare a set of drawings, “solely for our use and may not be relied upon by any other party.” The client receives a copy of the plans after the balance is paid on the design agreement.

At the bottom of the footprint and elevation plans that The Kitchen and Bath Factory proposes to the client, the fine print notes indicate that dimensions are subject to verification on the job site and must not be released or copied unless applicable fee has been paid. This is part of the design agreement.

“Our drawings would not include dimensions, scale or nomenclature specs of a cabinet company. Larger plans that are copied stay in house for company and city use,” comments Perez. “Initially, we introduce the drawings to give clients a sense of what is possible, and final plans are to be given later at the conclusion of the job.”

Curtis also recommends giving clients only perspective drawings or ones that are not to scale until there is a signed construction agreement.

“And, every drawing they get from you should have your company name and logo on it,” he adds.

Serra’s policy of not giving out drawings at all has lost her a few projects, but she notes that, for the most part, it has not been a problem.
“Our service [as designers] is unique,” Serra says. “Once a piece of paper is casually printed out and handed to a client, that piece of paper can be worth $100,000.”

While she acknowledges the argument that the client is entitled to the plan because the person paid for it, she stresses that there are many factors to consider that go into creating that plan on the designer side, such as travel time, preliminary plans, plan changes, continuing meetings, pricing and repricing, staff time and research, to name just a few. By the time the plans are executed, “I’ve more than exhausted the dollar value of the design retainer in relation to the time spent on the work,” she states.

Clearly, there are many paths that designers can choose when developing kitchen and bath projects, and many ways to protect themselves against theft of design. While none of the recommendations is foolproof, all serve to give designers more leverage and put clients on notice.

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