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Ownership of Documents 101

By Lawrence Powers, Esq.


It is a reasonably safe bet that nine out of ten Architects have no clue about the extent of the intellectual property rights they possess in the drawings they prepare for their clients. Most have a vague sense of “owning the copyright” in the design documents that they prepare but they don’t really know, for sure, what those rights are, how they arise and how they must be both perfected and protected. The purpose of this article is to provide Architects with the basics on their ownership of the documents that they prepare. Here are the answers to the most basic of questions relating to the ownership of design documents:

What is a copyright, and why is it important to me?

Copyright is the law that gives you control over the fruits of your creativity. Architects’ control over the things that they create arises from two things - their contracts with the people who commission their works and the Architectural Works Copyright Protection Act of 1990. In 1990, Congress added “architectural works” to those works protected by a Federal copyright. It did so by adding an “architectural work” as a type of intellectual property subject to copyright protection. Under the statute, an “architectural work” is defined as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of space and elements in the design, but does not include individual standard features”

This protection of “architectural works” is not as expansive as other types of copyright protection, in two significant ways. First, for practical reasons, taking a picture of a building which is “ordinarily visible” from a public place does not constitute copyright infringement. Were that so, it would be virtually impossible to publish a photograph taken in any major American city without infringing upon the copyrights of multiple Architects. Second, copyright protection does not extend to “individual standard features”, such as doors and windows. Presumably, this is an acknowledgment that a lot of architecture consists of the boilerplate use of standard building components and details. Accordingly, if someone “steals” a standard detail from one of your drawings, that’s not copyright infringement.

For the most part, all architecture is derivative, in some way or another. Even an “organic” architect, like Frank Lloyd Wright” took his “standard details” from the original Architect. Accordingly, unless your design breaks new ground, or is highly original, pride in the aesthetics of your designs will not normally be the determinant factor in deciding whether or not to copyright one of your designs. Rather, the primary determinant factors will be controlling your potential liability for the use, modification and reuse or your design documents and in insuring that you are paid for your works.

Controlling the use of your works through contract clauses and copyright protection:

In most instances, the issue of the ownership of architectural design documents is (or should be) addressed in the Owner/Architect contract. Typically, that contract is an AIA form contract, such as the AIA Form B-101 (Agreement Between Owner and Architect). In that document, the ownership of documents is addressed in the following clauses:

ARTICLE 3 COPYRIGHTS AND LICENSES

3.1 - The Architect and the Owner warrant that in transmitting Instruments of Service, or any other information, the transmitting party is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the Project. If the Owner and Architect intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions.

3.2 - The Architect and the Architect’s consultants shall be deemed the authors and owners of their respective Instruments of Service, including the Drawings and Specifications, and shall retain all common law, statutory and other reserved rights, including copyrights. Submission or distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the reserved rights of the Architect and the Architect’s consultants.

3.3 - Upon execution of this Agreement, the Architect grants to the Owner a nonexclusive license to use the Architect’s Instruments of Service solely and exclusively for the Project, provided that the Owner substantially performs its obligations, including prompt payment of all sums when due, under this Agreement. The Architect shall obtain similar nonexclusive licenses from the Architect’s consultants consistent with this Agreement. The license granted under this section permits the Owner to authorize the Contractor, Subcontractors, Sub-subcontractors, and material or equipment suppliers, as well as the Owner’s consultants and separate contractors, to reproduce applicable portions of the Instruments of Service solely and exclusively for use in performing services for the Project. If the Architect rightfully terminates this Agreement for cause as provided in Sections 5.3 and 5.4, the license granted in this Section 3.3 shall terminate.

These contract clauses provide that the Architect owns the copyright to his or her design. They do not, however, perfect that right. That right, to be protected under the Act, must be perfected by making the appropriate filing with the United States Copyright office. You can do so by marking all copies of your design documents with a conforming copyright notice, i.e., © 2016 John or Jane Doe, AIA, and, after filling out a form, submitting two copies of the drawings and paying the requisite fee, registering your work with the Copyright Office within three months of its first publication. If you do this, you will have done what you need to do as a pre-requisite to filing a Federal copyright infringement action and availing yourself of the statutory damages available under the Architectural Works Copyright Protection Act of 1990 (up to $30,000 per infringement or, if the infringement is willful, up to $150,000 per infringement, plus an award of counsel fees). It is recommended that you consult with a qualified intellectual property lawyer when you do this, in order to be sure that you have properly met all of the filing requirements.

Controlling your potential liability for the use, modification and reuse or your design documents:

The AIA Electronic Contract Documents are particularly useful in helping you control your potential liability for the use, modification and reuse or your design documents. The AIA Contract Documents Committee (“AIA CDC”) has addressed this longstanding concern of Architects on the use of their digital documents by Owners and Contractors. Architects are rightfully concerned, now that the old days of an ink signature and a raised seal have given way to the requirement for electronic filing in an era of Internet transmissible CADD files. The AIA CDC has done so by creating two documents, the E-201 Digital Data Protocol Exhibit, which permits the parties to enter into agreements to determine the uses to which such data may be put, together with the means of transmission and the data format. This is, of course, especially important as the use of BIM becomes more prevalent. The AIA CDC has also provided a document for use by parties who do not otherwise have an agreement to use and share that same digital data. That document is the C-106, the Digital Licensing Agreement. Both of these documents are fairly broad, and require your serious consideration as to how and by whom your design documents may be used.

The Bottom Line (Getting Paid):

Many times, Architects who are being “chiseled” by unscrupulous Owners call me and ask if they can “pull their seal” on a project that is deep into the construction phase. The answer to that question is a resounding no. However, if you have included proper ownership of documents clauses in your contract, you can advise the Owner that your limited license to use your design documents has been revoked and threaten a Federal copyright action if the Owner persistently fails to “substantially perform its obligations, including prompt payment of all sums when due”, under that Agreement.

For most Architects, this is really what copyright protection is all about. Accordingly, you should do yourself a favor. Consult with a good copyright attorney and learn how to properly create and perfect copyright protection for the fruits of your artistic vision. The contractual protections and Federal copyright protections are there for you, if you bother to take the time to learn about them and use them.

Lawrence Powers is Co-Partner in Charge of the Construction Law Group at the New Brunswick, New Jersey based law firm, Hoagland Longo Moran Dunst and Doukas, LP. He is also General Counsel to AIA-NJ, NJSPE and NJASLA.


More About the author Lawrence Powers, Esq.


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