Copyright and design contracts

Copyright and design contracts

We claim copyright of the work we do for clients. The drawings, specifications and ideas contained in them are ours just as much as a novel’s text belongs to the novelist. We have language in our contracts stating our copyright, and we have often been asked by clients: does this mean I can’t use your drawings after the project is done? What if I want a record set to help with facilities operations and management?

The short answer is, of course you can use our drawings.

As much as the American Institute of Architects despises the practice, we use a letter form of agreement for most of our work. The language and intent are largely in line with AIA standard forms of agreement between owners and architects. We just don’t like paying a lot of money to the AIA to simply write a contract.

The intent of our copyright claim is to simply say, we are producing documents to help you build this facility. You cannot use our documents to build a second facility. Our language on copyright is similar in intent to the AIA language.

That, in a nutshell, is it. Owners retain our services in order to build a building. We produce drawings and specifications to build that building. Our fee is compensation for the design (ideas and concepts) and the instruments of service (drawings and specifications delivered to the client) to build that building. Had we known the owner was going to build 20 similar buildings, we would have charged more.

But wait! Isn’t the amount of effort the same, whether the owner wishes to build one building or twenty?

The effort expended on our part may be  largely similar. Then why would we charge more? There are two reasons. First, each time the building is built, there are risks that may come home to roost in our lap. Each site is different. What we designed for Site A might not work for Site B. We may have done construction administration for the first building, but not the subsequent ones. Secondly, we frequently get paid to work by the hour, but what we really want to get paid for is the value we bring to the owner for providing a service in the market. In other words, while design fees on building projects may run 10 percent of construction cost, if our design is used on 19 repeat projects, we have effectively provided design services for 0.5 percent of the cost of construction.

Realistically, were we approached by an owner to design a building that would be built 20 times, we would not charge 20 times our normal fee. We would want to sit down with the owner and negotiate, discussing risk, site and other context differences, and what essentially amounts to a fee that covers the licensing to use one design over and over again. To repeat the corollary with novelists, a novelist gets paid more when her book sells a million times than when her book sells only once.

Back to the AIA documents and the fees they charge. Aren’t they like novelists, too? Shouldn’t they be getting paid a royalty every time we use their standard contracts? The answer is yes, and we do pay them every time. We’ve also come to realize we can write our own contracts for many of our projects, and for those projects we have produced our own contract documents. Royalty-free.

One last item: what about the design ideas contained in our drawings? Do we claim copyright ownership on them? No. Everything we design has shown up before. There is really nothing new under the sun. We don’t own a unique flashing detail, or a specific curve on a roof. So go ahead, point to one of our buildings and ask another architect to “do something like that”. We design buildings. Their general form is in the public domain. We would be flattered.

Follow Mike Sealander, Maine Licensed Architect:

Architect

Principal at Sealander Architects, Ellsworth Maine. Revit guru. Married with 3 children. Avid gardener. Lived in San Francisco for nine years. Master in Architecture from Columbia University Bachelor of arts in religious studies, Wesleyan University. Graduated Staples High School, Westport CT. Hope to spend some time in Hokkaido before all is said and done.

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