Owner wants ownership of the documents.

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Author Message David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1578 Registered: 03-2002 Posted on Thursday, July 20, 2017 - 08:28 pm:    Only after I submitted a draft of the specifications did the Architect inform me the Owner insists on retaining ownership of all the documents. Had I known that ahead of time I may not have accepted the project. Tomorrow I have a meeting to discuss just what the Owner defines as "ownership". David G. Axt, CCS, CSI, SCIP Specifications Consultant Axt Consulting LLC David J. Wyatt, CDT Senior Member Username: david_j_wyatt_cdt Post Number: 200 Registered: 03-2011 Posted on Friday, July 21, 2017 - 08:26 am:    David, that could turn into a long meeting. I am wondering if it is legal for the Architect to confer ownership of the Contract Documents. If it is, does that also mean the Architect has no responsibility for consequences related to the design? Dave Metzger Senior Member Username: davemetzger Post Number: 692 Registered: 07-2001 Posted on Friday, July 21, 2017 - 08:58 am:    David, does your contract with your architect client address document ownership? Are there pass-through provisions binding you to provisions in the owner-architect agreement? J. Peter Jordan Senior Member Username: jpjordan Post Number: 981 Registered: 05-2004 Posted on Friday, July 21, 2017 - 10:11 am:    The current ideas about "ownership" of documents grow out of concerns about copyrights with regard to the construction documents. These stem from a concern that the construction documents may be used for a different project without the architect;s permission or even knowledge. I am aware that this does occasionally happen. I have seen specification files produced by my firm used on different projects without my knowledge or consent (with unfortunate consequences). If I remember correctly the current AIA A 201 language reserves document ownership and copyrights to the architect and their consultants (see Paragraph 1.5, AIA A 201 2017). It also gives authorization to the Contractor (and related entities( permission to "use and reproduce the Instruments of Service provided to them... for execution of the Work." The General Conditions are silent with regard to the owner's use of the documents, and I would think that a careful attorney would craft language parallel to Paragraph 1.5.2 which grants the owner similar rights although they could be expanded to include use and publication related to future work on the project. Owners frequently do not understand that permission to use and reproduce the documents in relation to the Work should be sufficient. Any argument is usually futile since the attorney responsible for the language is unknown and certainly not present for the discussion. The architect is certainly free to "give away" ownership of the contract documents. He/she is not free to "give away" ownership of documents produced by consultants and subconsultants without their knowledge or consent. Certainly Mr. Axt should include a modification in the agreement to the effect that he will not be held responsible for any modifications to his documents that were not produced or authorized by him. J. Peter Jordan, FCSI, AIA, CCS, LEED AP, SCIP Ronald J. Ray, RA, CCS, CCCA, CSI, AIA Senior Member Username: rjray Post Number: 158 Registered: 04-2004 Posted on Friday, July 21, 2017 - 12:14 pm:    Peter is correct that AIA A201 – General Conditions of the Contract for Construction, is silent on the owner’s use of the documents. The reason A201 is silent, is because the issue is between the architect and owner, not the owner and the contractor. Therefore, AIA has rightly placed the subject of the owner’s use of the architects Instruments of Service in AIA B101 - Standard Form of Agreement between Owner and Architect, wherein, the architect grants to the owner the right to use the Instruments of Service. However, no mention of “ownership” of documents occurs in AIA B101 as it does in A201. “Copyright” is quite clear and defined by U.S. statutes. If someone gives their copyright authority to an owner, or another entity, they give up the right to reuse any information contained in the copyrighted material. Most architects do not realize the implications, and simply give up their copyright to any building owner that request or demands it. What that means, is that everything on the documents is now under a copyright controlled by the building owner, including any architectural firm’s corporate logo that appears on the documents, and all drawing details. By law, the architect can never use anything contained in the documents again without permission from the new copyright holder. I don’t think building owners really want to own the copyright. They want something, they just assume the owning the copyright provides them with whatever it is they want. Perhaps they want that ownership think mentioned in AIA A201 section 1.5.1. Unfortunately, I am not sure if anyone knows what this “ownership” means as it relates to the architects Instruments of Service. From the language in AI A201, it must mean more than copyright, since the language states “including copyrights.” Maybe AIA should investigate this language in the next update of their contract documents, in 2027. David J. Wyatt, CDT Senior Member Username: david_j_wyatt_cdt Post Number: 201 Registered: 03-2011 Posted on Friday, July 21, 2017 - 01:24 pm:    As it relates to statutes governing design professionals, would conferring "ownership" of the documents to another party relieve the architect or engineer from legal responsibility for them? Michael Chusid, RA FCSI CCS Senior Member Username: michael_chusid Post Number: 300 Registered: 10-2003 Posted on Friday, July 21, 2017 - 02:27 pm:    "If someone gives their copyright authority to an owner, or another entity, they give up the right to reuse any information contained in the copyrighted material." This is a common misconception. Copyright is for the specific expression and does not extend protection to the underlying ideas or information. CSI, for example, copyrights MasterFormat, but cannot limit my use of "09 50 00 Ceilings". I may not be able to reproduce a copyrighted map, but the information that Highway 405 intersects Highway 101 in Sherman Oaks, CA is free for me to use. "everything on the documents is now under a copyright controlled by the building owner, including any architectural firm’s corporate logo that appears on the documents, and all drawing details." The firm's logo is protected by trademark law (whether or not the trademark is registered), not copyright. The drawing details are like the map. Even if the owner can claim ownership of the specific drawing, the information in them can be redrawn anytime. Some might also argue that the Drawings of a complete project is the entity that is copyrighted, not the components. Michael Chusid, RA FCSI CCS www.chusid.com www.buildingproduct.guru 818-219-4937 William C. Pegues Senior Member Username: wpegues Post Number: 956 Registered: 10-2002 Posted on Friday, July 21, 2017 - 03:17 pm:    Here are some related references... https://www.constructionspecifier.com/copyrights-in-architectural-drawings-courts-make-it-tougher/ http://www.archdaily.com/328870/the-10-things-you-must-know-about-architectural-copyrights These are written from the point of view of the architect being the copyright holder, but you can see that for the most part, much of the work is not really capable of being copyrighted as Michael states above. William C. Pegues, FCSI, CCS, SCIP Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 1422 Registered: 07-2002 Posted on Friday, July 21, 2017 - 07:28 pm:    We have a lot of owners who insist on owning the documents. There isn't anything unusual about this. Your contract should state that the documents are for the use of XXXX project in XXX location and any other use of the documents is not covered under your stamp. Even if you did not "sell " your documents to the Owner, there is nothing preventing them from scanning or copying the documents and reusing them. Louis Medcalf, FCSI, CCS Senior Member Username: louis_medcalf Post Number: 85 Registered: 11-2010 Posted on Wednesday, July 26, 2017 - 03:38 pm:    When I helped negotiate contracts for a previous firm, we would state that client ownership did not occur until the fee and reimbursables were fully paid. We also defined exactly what was owned. One proposed contract asserted the client wanted to own *everything*, down to the last post-it note, pages from appointment books, and tracing paper sketches. Phil Kabza Senior Member Username: phil_kabza Post Number: 590 Registered: 12-2002 Posted on Monday, July 31, 2017 - 05:35 pm:    Louis - Your posting is a reminder that there are some clients that just are not worth working for. The only exception I could understand would be one in which the design was for a highly sensitive security facility where all project communications would need to take place within a similarly secure facility. Thankfully the projects we do are simpler than that. David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1582 Registered: 03-2002 Posted on Monday, July 31, 2017 - 07:48 pm:    Here is the response from my client. ".... the Owner wants to use the documents however they want, without restriction or limited license. Because they are a gaming tribe, they often want to use drawings developed for a project in subsequent remodels and I suspect that all Owner of several facilities, they don’t want the legal encumbrances associated with the limited license typical in most AIA type agreements. At the end of the day this is a Tribe and any litigation from use of documents would be handled in federal court, which means that we would work hard to settle any disputes prior to litigating. What is your reluctance to provide them ownership of the documents? They will not be building another [project type] like this when we are complete? Other consultants are party to the prime agreement through me, so effectively they are losing ownership of the documents by being a party to the team. I can understand how working for school districts this would be an important clause given their interests in sometimes seeking formulaic solutions that can be applied multiple times in different locations and that this would provide some protection for you from this implicit interest in a school client, but that’s just not the case with this [project]. Let me know what you think." David G. Axt, CCS, CSI, SCIP Specifications Consultant Axt Consulting LLC David G. Axt, CCS, CSI ,SCIP Senior Member Username: david_axt Post Number: 1583 Registered: 03-2002 Posted on Monday, July 31, 2017 - 07:54 pm:    I am developing a few specifications for very specialized materials for this project. Theoretically the Owner could sue me if I use these specifications on my other projects. Of course that is very unlikely to happen but it is something to think about. On another discussion thread I posted excerpts from Arcom's licensing agreement that strictly forbids transfer of ownership from the original subscriber to another nonsubscriber. Arcom does not want subscribers handing out free copies of MasterSpec and Arcom not getting paid. David G. Axt, CCS, CSI, SCIP Specifications Consultant Axt Consulting LLC Ronald L. Geren, FCSI, AIA, CCS, CCCA, SCIP Senior Member Username: specman Post Number: 1466 Registered: 03-2003 Posted on Monday, July 31, 2017 - 08:11 pm:    An interesting article from IRMI on this subject: https://www.irmi.com/articles/expert-commentary/copyright-infringement-of-design-documents Ron Geren, FCSI, AIA, CCS, CCCA, SCIP www.specsandcodes.com Ronald J. Ray, RA, CCS, CCCA, CSI, AIA Senior Member Username: rjray Post Number: 159 Registered: 04-2004 Posted on Monday, July 31, 2017 - 08:36 pm:    Regarding copyrights, as I understand it, the copyright of an expression (the design of a building) is separate from the copyright of a printed work, like drawings and a project manual, which can, like any other printed material, be copyrighted. For documents produced by design professionals. I believe Mr. Chusid comments are referring to the 1990 “Architectural Works Copyright Protection Act, which covers the “expression,” not the published documents that were used to create the expression. David, if your agreement with your client does not contain any language requirement you to turn over ownership of the documents you prepare, including any language tying you to the agreement between your client and the owner, my guess is that no one has a legal basis for requiring you to give away your ownership. Louis Medcalf, FCSI, CCS Senior Member Username: louis_medcalf Post Number: 88 Registered: 11-2010 Posted on Tuesday, August 01, 2017 - 11:20 am:    The Specifying Practice Group session on Thursday afternoon, 3 August will be on "Intellectual Property for Design Professionals." David Stutzman and I have arranged for a guest presenter, Josh Flowers, who is both a registered architect and a lawyer, to speak on the subject in response to several requests. Josh will also be a presenter at Construct 2017. There is a link for registration on the home page of www.csiresources.com. The session is free to non-members as well as members. Sign up and join the discussion. Michael Chusid, RA FCSI CCS Senior Member Username: michael_chusid Post Number: 305 Registered: 10-2003 Posted on Tuesday, August 01, 2017 - 03:02 pm:    Ronald, Thanks for reminding us of the Architectural Works Copyright Protection Act. I was not referring to that act, however. I was referring to written documents in the broader sense of copyright law. Michael Chusid, RA FCSI CCS www.chusid.com www.buildingproduct.guru 818-219-4937