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Intellectual Property: Know What You Own

Clear and upfront communication on intellectual property, project document ownership rights and future usage between owner and architect or designer is an essential and valuable component in contract negotiation.

By Peter Exley, FAIA, and Sharon Exley, MAAE, ASID   •  May 8, 2017 1:09 pm EDT

Tags: aia, architectural design, business, copyright, faia, intellectual property, legal, ownership,

Architecture Is Fun is fortunate to work with stellar museum clients. These are experienced clients who sometimes lack clarity in respect to ownership of instruments of service. Clear and upfront communication on intellectual property, project document ownership rights and future usage between owner and architect or designer is an essential and valuable component in contract negotiation, alleviating future misunderstandings and misuse of design work.

Eager to develop longtime relationships, circumstances may dictate caution in negotiations. However, we advocate negotiating hard for copyright. The counsel of attorneys and colleagues stress that relinquishing ownership of instruments of service impacts future work and transfers potential liability. When many of us are anxious for work, we may not be thinking about best practice. We should.

First-hand experiences

We were recently contracted to conduct a master plan for a high profile museum client with their own in-house contract which specified ownership and copyright of the work be held by the museum. To engage in this study, our studio would use a tool kit and series of public space strategies that we have created over time and based upon our original ideas. If our client owned the final documentation, our right to use our own tool kit and strategies would be jeopardized. We might not be able to publish our own ideas, nor use our own tools on future projects.

Another project involves the interior architecture and build-out of public and educational spaces. On such projects, it is likely that our team will turn to our long-standing portfolio of proprietary designs, custom family-friendly furnishings, frequently used details and graphic standards. Many of these elements are derivative, iterative and reissues from favorites in an extensive canon of work. Our documentation (drawings, BIM, specification and other tools that communicate our ideas and concepts), controls quality and has been developed by us to bring value and efficiency to our clients, collaborators and projects. Our investment in developing this body of work, these tools, and this approach is significant. Reuse without our consent or participation risks an adjustment that has the potential to expose everyone to risk. Perhaps you have an ingenious solution to a stair detail you use on every project; if a third party copies it, but makes a slight adjustment, structural integrity or code compliance may be impacted. Such a scenario risks the health, safety and welfare of users and potentially leaves the original designer exposed. It is important to protect our work from re-use without out involvement.

In these cases, clients often assure us that they had never encountered copyright as a sticking point. We in turn communicate how their ownership would affect our future work, using some of the examples above. We note that if they wish to reproduce an artwork on a poster celebrating a new exhibit, for instance, that they would approach the artist or their estate for permission. Typically, our work is a license for use on a single project and should not be reused without an agreement between owner and designer. It is essential we protect our intellectual property and control ownership of instruments of service. This allows us to assume and minimize the risks, and to benefit from the rewards of our ideas and work. We want our design portfolio to remain ours alone – to exhibit, to authorize, to make derivatives from and to repeat. That’s sound business practice, and protects the owners of our work who are assured of the standards and quality we provide as part of their investment. The software industry has done a good job of articulating and enforcing this concept in their business relationships.

If you are a residential architect, read Angus Dawson’s RIBA online article on "Copyright After Sale." Dawson cites a recent lawsuit questioning ownership transfer of design documents. In this case, while new documents were drawn, they were referential to the copyrighted original work vested to the architect, and were not to be copied, reproduced or redrawn without consent.

Smart choices

The takeaway, we believe, is to consistently protect your future as a practitioner. Consider copyright and ownership of instruments of service as your property, your practice, and your future. We recommend always using the copyright mark © to emphasize this. Most of all, communicate to your clients the value that this ownership brings to their project.

Please visit the RIBA Agreements Bookshop for more information, including the full Dawson article :

http://www.ribabookshops.com/agreements

Pick up a copy of "The Legal Guide to AIA Documents" by Werner Sabo.

For more information about Ownership of Instruments of Service, please visit the AIA Trust Online:

http://www.theaiatrust.com/who-owns-the-instruments-of-service/


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