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Jerome J. Lazar, RA, CCS, CSI, SCIP
Senior Member
Username: lazarcitec

Post Number: 626
Registered: 05-2003
Posted on Tuesday, December 09, 2008 - 02:53 am:   Edit PostDelete PostPrint Post

Curious, came upon the following language in a clients agreement with a City agency - is this standard stuff? Should I agree to accept this or is an exception possible?
RE: Ownership of Documents - "All tracings, plans, drawings, specifications, maps, computer files, and/or reports prepared or obtained under this Agreement, as well as all data collected, together with summaries and charts derived therefrom, including all electronic digital copies will be considered works made for hire and will, based on incremental transfer wherein the above shall become the property of the City upon payments made to Consultant or termination of this Agreement without restriction or limitation on their use, and will be made available, on request, to City at any time during the performance of such services and/or upon completion or termination of this Agreement. Consultant shall not copyright any material and products or patent any invention developed under this Agreement. The City shall have the right to visit the site for inspection of the work and the products of Consultant at any time. The Consultant shall be permitted to retain copies, including reproducible copies, solely for information and reference in connection with the City's use and occupancy of the Project."
Mark Gilligan SE, CSI
Senior Member
Username: mark_gilligan

Post Number: 111
Registered: 10-2007
Posted on Tuesday, December 09, 2008 - 04:10 am:   Edit PostDelete PostPrint Post

It has been our experience that clients will usually accept modifications to unreasonable language. On the other hand you probably do not want to work with clients that are unreasonable and will not make any changes.

Consult with your attorney of your E&O carrier. I believe that you will find that this language is not to your advantage. Among other things it allows them to reuse your work without paying you.
Ronald L. Geren, AIA, CSI, CCS, CCCA, SCIP
Senior Member
Username: specman

Post Number: 717
Registered: 03-2003
Posted on Tuesday, December 09, 2008 - 09:39 am:   Edit PostDelete PostPrint Post

Most of it is harmless and fairly consistent with other forms of agreement. However, the following phrase is something to be concerned about:

"Consultant shall not copyright any material and products or patent any invention developed under this Agreement."

A friend in a patent attorney's office has told me that architects could patent some of the design work they have developed, but they don't because either they don't know or don't want to bother with it.
Phil Kabza
Senior Member
Username: phil_kabza

Post Number: 355
Registered: 12-2002
Posted on Tuesday, December 09, 2008 - 06:39 pm:   Edit PostDelete PostPrint Post

I'm a bit uneasy with this, because it establishes that A/Es produce "works for hire" and "products", neither of which are true. We perform a service. The documents we produce are not products, they are instruments of service. Your insurance carrier may have some reservations about these definitions and recommend alternate language. They no doubt were developed in a public agency's procurement department accustomed to purchasing goods but ignorant of professional services.

One wonders if they claim ownership of briefs prepared by attorneys retained by the city, or of medical opinions offered by physicians consulting on workers compensation cases ...

Many owners seem unaware of the reasonable terms offered by AIA standard language regarding their use of the Architect's documents under license for construction and facilities management. Their attorneys do them no service by insisting on "ownership" of the documents by the owner. Owners benefit little from this "ownership", and establish an adversarial relationship with the Architect from the start. Or perhaps that is their attorney's intent.

It would be interesting to inquire if the owner, upon approval and payment, would be willing to indemnify the Architect for damages arising out of the use of the documents. If not, then who really "owns" the documents?
Ronald L. Geren, AIA, CSI, CCS, CCCA, SCIP
Senior Member
Username: specman

Post Number: 719
Registered: 03-2003
Posted on Tuesday, December 09, 2008 - 10:41 pm:   Edit PostDelete PostPrint Post

Phil, those are some good points.

If the owner wants everything, then it should be willing to accept everything--including the liability.

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