Problem with Prototype Specifications

Log Out | Topics | Search Moderators | Register | Edit Profile

Author Message David J. Wyatt Senior Member Username: david_j_wyatt_csi_ccs_ccca Post Number: 123 Registered: 07-2005 Posted on Tuesday, October 20, 2009 - 01:22 pm:    Just ran into a new problem. Owner/licensee of a famous retail chain provided prototype drawings and specs to local architect for a site adapted project. But the specs are in a secured pdf format. The original spec consultant, who was a subconsultant to the prototype architect, will not allow anyone access to the Word documents so they can be modified for specific sites. Said spec consultant believes he is entitled to royalties or consultant work per project if they are used. He says he will litigate if anyone copies them in any way. While preparing my own specs for the project, using the prototype as a mere guide to the owner's standards, I found that many of the specs are downloads from manufacturer websbites and re-formatted. And there are mistakes that needed to be corrected. So, in this case, not being able to quickly capture and regurgitate a prototype is protecting my client and myself from E & O problems. Some ethical issues are swirling through this. When one does spec work for hire, is one entitled to copyright or royalties on the deliverables? What good is a prototype resource if it cannot be used by subsequent clients? Also, what risks do design professionals assume when they are to design to a prototype design that contains errors? Have any of you endured such a situation, and, if so, how did you handle it? Mark Gilligan SE, CSI Senior Member Username: mark_gilligan Post Number: 226 Registered: 10-2007 Posted on Tuesday, October 20, 2009 - 01:38 pm:    If you are a licensed design professional and you use prototype specifications you accept liability for the results as if you prepared them. I would suggest that if you raised specific issues with the client and informed him of the risk and he continued to demand you use them you might be able to protect yourself. This assumes that it is not a safety issue, third parties will not be at risk, and that your had clearly communicated the issues to your client. Robin E. Snyder Senior Member Username: robin Post Number: 277 Registered: 08-2004 Posted on Tuesday, October 20, 2009 - 01:46 pm:    Copyright can get complicated, but, generally, if a person produces something under "work for hire", then the employer owns the copyright, not the person who created it. This arrangement can be altered via contractural language, so it really depends on the contract between spec writer #1 and the retail chain. Now, Spec writer #1 may have a hard time arguing that his/her specs are an "original work of art" if a large portion is simply copied from manufacturers. Here is a good article: http://www.copyright.gov/circs/circ09.pdf This isn't really your battle to fight, especially if there are legal threats from SW#1 - the owner needs to fight the battle. Lisa Goodwin Robbins, RA, CCS, LEED ap Senior Member Username: lgoodrob Post Number: 41 Registered: 08-2004 Posted on Tuesday, October 20, 2009 - 02:22 pm:    Here's another possible side to this story. The Architect hires an independent spec consultant to prepare a specification for one specific retail store. Then the retail client decides to use that specification as a master for 50 retail stores, without additional compensation. If you were this spec consultant, would you be pleased with this arrangement? Do you think the Architect even asked the spec consultant before emailing PDFs? David J. Wyatt Senior Member Username: david_j_wyatt_csi_ccs_ccca Post Number: 124 Registered: 07-2005 Posted on Tuesday, October 20, 2009 - 03:07 pm:    Thank you, Robin, for the informative link. Although it is indeed the owner's battle to fight, it brings up a lot of good discussion. Thank you for the insight. Lisa makes a good point. Once I allowed myself to enter into a low fee arrangement on one project with the (unwritten) promise that many more projects would follow. Of course they didn't. Now my spec deliverables are pdfs and we discuss the reasons why up front. It doesn't solve the problem entirely but it lets the lead consultant know you were not "born yesterday." Mark Gilligan SE, CSI Senior Member Username: mark_gilligan Post Number: 227 Registered: 10-2007 Posted on Tuesday, October 20, 2009 - 03:15 pm:    I am surprised that it is not the architect for the prototype that is raising the issue of copyright. It is normal for architects to spell out how the design can be reused. If the owner has fulfilled his part of the contract the Owner can lean on the architect of the prototype to make the specification consultant shut up. As stated above the issue is for the Owner and your client to resolve. Richard Howard, AIA CSI CCS LEED-AP Senior Member Username: rick_howard Post Number: 222 Registered: 07-2003 Posted on Tuesday, October 20, 2009 - 03:15 pm:    The owner should provide you with certification that you have certain limited rights to use the documents and indemnifying you against any action resulting from their use. You should get this protection whenever you use documents prepared by others, whether used whole or in part, or merely followed as a guide in preparing your own documents. You have no way of knowing if there are any elements that are protected by copyright or patent. It is up to the owner to give you assurance, in writing, that you may use the drawings and other written documents as directed. Robin E. Snyder Senior Member Username: robin Post Number: 278 Registered: 08-2004 Posted on Tuesday, October 20, 2009 - 03:59 pm:    Lisa - again - the problem is that the Owner may legally own the copyright to the specs for that project, and is therefore free to do what they wish for them. Unless the spec writer had contractual language otherwise. As independents, we like to think we have copyright control of our specs, but, legally, we probably don't. Ronald L. Geren, AIA, CSI, CCS, CCCA, SCIP Senior Member Username: specman Post Number: 807 Registered: 03-2003 Posted on Tuesday, October 20, 2009 - 04:23 pm:    The owner may or may not have copyright depending on the owner-architect agreement. Under AIA documents, the architect retains the copyright. As Robin stated, the consulting specifier may not have copyright, especially if the specifications were developed from a master guide specification such as MasterSpec, but they can contractually limit the uses for which the specifications can be used. Master guide specifications may limit how the specifications are used and prototype projects may not be permitted. MasterSpec's license agreement states that it can be used "solely and exclusively in connection with a single construction project." Therefore, MasterSpec could no be used as the basis for a prototype project. I would expect that a master specification developed by an independent consultant could be copyrighted just like MasterSpec. I have in my agreements that the client (architect) has a license to use the specifications for the "Project." I don't say they can't use it elsewhere, but I do say that if the client uses the specifications (in whole or in part) for any use other than for the "Project," then I am released of any liability for the other use. For specifications I prepare for manufacturers, that is another issue. The specifier would then possibly have a copyright with a special license to the manufacturer. Ron Geren, AIA, CSI, CCS, CCCA, SCIP www.specsandcodes.com Richard Howard, AIA CSI CCS LEED-AP Senior Member Username: rick_howard Post Number: 223 Registered: 07-2003 Posted on Tuesday, October 20, 2009 - 04:42 pm:    It is my understanding that MasterSpec may be used for design of a prototype project, provided the owner/developer maintains a basic license from MasterSpec for at least as long as the prototype masters were in use to prepare site-specific projects. Something that needs to be taken care of up front with the owner/developer as an extra cost. J. Peter Jordan Senior Member Username: jpjordan Post Number: 368 Registered: 05-2004 Posted on Wednesday, October 21, 2009 - 10:28 am:    As I do more projects of different sorts, this becomes a more intriguing question. I have taken the position that I am creating a "work for hire" since I do not seal documents. In this position, I believe the work becomes my client's property as soon as I produce it. However, because of some recent problems, I am wondering if I should retain copyright with a license to use, unlimited once I have been paid. I would like to get paid a royalty for each specification used for a "prototype" design, but the practical side of it is that many aspects of the prototype only express design intent (even if they are very specific) and cannot be used verbatim on every project. Case in point: A building prototype designed in Dallas for use around the country had to be modified for the wind load in Houston. The oversized lites in the curtain wall showroom had to include 3/8-inch float to resist deflection. As a result the lites were just on the borderline of being too heavy to fabricate. There were several other aspects that had to be modified as well. This project was not even situated in "hurricane country"; can't even begin to comprehend what might have been required in that location. The reason the national chains (big box retail, auto dealerships, drug stores, etc.) hire local architects is that changes to the prototype design must be made beyond simple adaptation to physical site dimensions. This goes for many of the specification sections as well. I may be able to make use of most of the interior finishes (in most cases), but the exterior envelope must be re-examined for each location. I really hate using "client masters" no matter what the content (which is usually, but not always, not very good), the format requires significant mindless modification so that I can use the tools I have to be efficient. Oh, and I am especially fond of the prototype design for one big box chain that I looked at about 5 years ago that was requiring "1/4-inch polished plate glass"; I told my boss that I wasn't sure if you could get that, but if you could, I thought it would be prohibitively expensive. I think we had to get permission to use float glass; stupid, stupid, stupid. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 913 Registered: 07-2002 Posted on Wednesday, October 21, 2009 - 02:00 pm:    many years ago, I developed prototype specs for a west coast restaurant chain and knowing that's what I was doing, my contract called for a base fee and then a re-use fee every time the my client architect used the specs. (it was small -- maybe $250 each time). However, I also developed master specs for a hotel chain and did that as a one-off project, with the owner owning all copyrights, and also the responsibility to update and "site adapt" the specs. it all comes down to the contract between specifier and client. I doubt that the first consultant copyrighted the work --most folks just don't do that, and most sophisticated clients insist that they own the documents. This is not for the second consultant to figure out -- he's two consultant agreements away from the original work. However, this does bring into mind in our consulting agreements, being very clear on the owner's intent for the documents and then following through with that contractually. we can't assume anything about what will be done with our documents, and Ron G. has the right idea to cover all possibilities and a release of liability.