A reader recently shared his experience regarding his client’s desire to share ownership rights to some of his drawings. The client, an attorney, argued that since he was bringing input to the creative process, he should also have unlimited rights to the drawings. The reader felt strongly that his designs should be his exclusive property and not owned by the client.
Former President George H. Bush signed into law in 1990 the Architectural Works Copyright Protection Act. Since its installment a number of architectural copyright infringement lawsuits have been filed. Most of the claims involved large commercial projects. However, Kipp Flores, an Austin, Texas architectural firm specializing in home designs for production builders, was awarded $5.2 million from a production builder who allegedly used Kipp Flores’ designs to construct homes.
Smaller design project cases are less common because it is difficult to prove copyright infringement. Design features often are similar and used repetitively by different builders making it difficult to prove creative authenticity. And I believe it is unlikely that a plan would be exactly replicated.
Even if a custom home is replicated by a third party, the monetary value of that design is difficult to establish, although arguably the design fee can be evidenced. Apart from the compensatory value for use of the design, there’s also the question of intrinsic damages to the originating firm for the replication.
It’s my understanding that a design is automatically considered copyrighted. The architect need not stamp and date it, but this can’t hurt. In my experiences, a copyright stamp usually satisfies nine out of 10 clients. For the 10 percent who question ownership, it can be a matter of negotiating the point to a win/win outcome. But please consult a copyright attorney for legal advice as I am not an attorney.
If a client strikes you as particularly litigious in nature, think twice before entering into a contractual relationship. Ultimately the courts will decide disputes regarding rights to design usage and ownership, no matter what your contracts indicate.
For design/build companies that do not offer design services independent of construction, design copyright is still owned by the originating firm. The client cannot walk with the plans and build with a third party. By reserving design-only services for your clients, not only do you preserve your design resources, but you ensure construction starts in the foreseeable future, with construction most likely your main profit center.
When a client questions limited use of the drawings, understand his motivation. If you think he has no intention of building with your company, but covets only your exclusive design, then you may want to increase the design fee to compensate for design-only service. If he walks without a construction commitment, you will have been duly compensated for your efforts.
If the client is hesitant to commit to design/build, you can break down your services into smaller phases. Providing schematic services at a prorated fee will establish a comfort zone for your client. If dissatisfied, the client can purchase the schematic for a fee in addition to the prorated fee paid upfront. If he is pleased and chooses to proceed with design, your copyright becomes applicable for all future work.
The question of ownership of drawings can become an emotional issue and is best discussed early in a relationship. Often-times, these conversations reveal the integrity and goodwill of each party which is a good thing to know as you commit to a long-term design/build relationship.