You don't own those drawings
There is a little known (or mostly ignored) fact in the profession of architecture that needs to be addressed and disseminated to a wider audience - ownership of instruments of service or copyright: Who owns the drawings and why? Owners think they do and recently we were put in a position to defend our own copyright. It’s not a comfortable position to be in, and it’s not the first time nor will it be the last. So I decided to sit down and write about why our copyright as architects in important and why its even more important to defend that copyright by all legal means necessary.
Here’s some background to set the stage:
The story starts out well. We were hired to help design the restoration of an important historic building designed in 1936 and built in 1939 here in Arkansas. We had access to some historical drawings which we used to verify and document the existing conditions of the building and create a fairly well-detailed As-Built model in our BIM software. We worked closely with the client on some budgetary concerns and assisted with the filing and approval of both Part 1 and Part 2 State and Federal Historic Tax Credit applications which would have resulted in several hundred thousand dollars worth of credits assuring the success of the project long term. During the design process we even assisted in facilitating the selective demolition and environmental abatement of the project to provide the client with a clean shell from which to begin the work we designed.
Unfortunately the economics did not work out and the client decided to list the building for sale. We remained involved and assisted the client and the real estate agent as much as possible by attending meetings and even working with potential buyers on what might be most appropriate and feasible given their needs. In short, we were and are incredibly invested in the success of this project considering its historic importance to the area.
Fast forward to several weeks ago, we discovered that the client and real estate agent were marketing the sale of the building along with “architectural drawings valued at $25,000”. This is a direct quote from the real estate listing. We were not consulted nor were we even asked if this was acceptable. But why is this important? I mean, what’s the harm, right? The client is just trying to use whatever means necessary to ensure a successful sale of the building and it’s not like I didn’t get paid or had a bad relationship with the client or real estate agent. In fact, to this point we had a very good working relationship. So, I politely told the real estate agent that while I understand they are attempting the sell the project and “hope that Rogue Architecture will be hired as the architect to continue with construction” it was not within their rights to share or especially transfer ownership of the drawings to any new potential buyers. I was at first met with confusion but with some sense of understanding. Until I discovered the marketing continued.
Here’s why it is important for all architects to protect their copyrights without exception:
IT’S YOUR COPYRIGHT. If you don’t protect it no one else will.
IT’S YOUR LIABILITY. You are liable for the drawings that you sign and seal regardless if they are used in a manner not intended or directed.
IT’S IN THE CONTRACT. If you’re using a standard AIA B101 or B104 section 7 lays out ownership and rights for the drawings or instruments of service and how they may and may not be used. It also expressly states that the drawings may not be transferred or used for any other purpose than the project in question without the express written permission of the Architect. That’s you.
IT’S YOUR INTELLECTUAL PROPERTY. Every project, whether residential, commercial, institutional, historic preservation, etc. has a unique set of design challenges and requirements to overcome. It is your experience, knowledge, talent, and expertise that makes that design possible. It is your intellectual property and no one has the right to it unless you allow them to take it.
When I explained this on a phone call with the real estate agent I was met with incredulity. They said, quote, “I’ve been doing this for 45 years and I have never had any trouble selling a building along with someone else’s design. I’ve done it many times over the years.” To which I replied “ignorance is not an adequate defense.”
But unfortunately he was right. Many architects may even believe that once the drawings leave their office they are no longer “theirs”. Or maybe they feel like defending that copyright would be too expensive or hurt a client’s feelings or hurt their chances of getting new work in the future. To that I say BOLLOCKS. If you’re going to spend between $50,000 and $250,000 and 5-6 years in college, another 3 years interning, then spend countless sleepless nights studying for exams to finally get that license, and THEN open your own business to provide architectural services to your clients why would you NOT defend and preserve your rights to your own work product and intellectual property?
I’ve listened for years about the dumbing down of the profession; how we collectively continue to race to the bottom, are losing the integrity and trust as a profession and as professionals that we are entitled to. Well, it starts at home, ladies and gentlemen. If you don’t respect yourself as a professional enough to stand up for your rights how can you expect that a client would? Or a contractor who gets a hold of a schematic set of your drawings and says “yeah, this is all I need”. Or a City Plans Examiner who doesn’t look closely enough and issues a permit based on your drawings that were never released for construction. You read your contracts. Make sure your clients do too. And make sure they understand them without exception. And if you lose a client because they want to “own” your work, let them walk straight out the door.
It’s time to stand up by standing out.
DISCLAIMER: Nothing contained herein shall be considered legal advice of any kind. All questions and comments relating to the interpretation or explanation of contractual clauses should be directed to your or an attorney with experience in construction contract law within your state of residence.