Protecting your Copyright in non-standard Construction Contracts (Law Note)

copyright symbol exploadingLast week I discussed copyright issues under ConsensusDOCS and AIA form contracts.  This week, we’re taking a look at how to protect copyright in your design documents when you are not using a standard form contract.

If I’ve learned one thing about working with a lot of design professionals over the past decade, it is that many of them– too many– are just plain too nice.  That’s right, too nice.  They send polite letters of proposal to the client, and then begin work on a handshake deal.  Or, they willingly sign on to the Owner’s contract without pushing to negotiate more favorable, mutually beneficial contract terms.  Under the maxim that “no good deed goes unpunished,” sometimes such clients are giving away their copyright ownership without being appropriately compensated.

Unscrupulous, or at least naive, owners sometimes believe that because they paid for design documents, they own them and can use them for any purpose.  This, of course, is *usually* not true.  However, sometimes the owner agreement states that the designer’s work product is created as a “work for hire” or otherwise provide that the owner has an unlimited ability to use the work product regardless of the circumstances.  Such clauses should either be removed altogether or negotiated up front, with appropriately compensation being provided for such copyright ownership.

If you are working under a letter proposal, it should at least include language indicating that the design team maintains ownership rights in the design documents.  Further, you should make explicit that the owner has no right to continue to use design documents in the event the owner terminates your contract unless and until full payment for such documents is given to the design team.  Even better would be a requirement that the owner indemnify the design team from any unauthorized use of the design documents.  (Hey, a girl can dream, can’t she?).

Most importantly, realize that without the built-in protections of the standard agreements, it will be much more difficult to enforce your copyright ownership in your plans & drawings.  For a few moments extra work on the front end tweaking your letter proposals or negotiating your owner contract, you can save countless hours of heartache on the back-end.

Do you have standard copyright ownership language in your non-form construction contract?  Ever had to fight copyright issues with the owner? Share in the comments below.  And, if you have not already done so, sign up for direct email delivery of blog posts right to your in-box.

Photo (c) Jens Rydén via Creative Commons license.

Copyright Protection under ConsensusDOCS and AIA–which is better? (Law note)

Large copyright sign made of jigsaw puzzle piecesWhich standard form contract provides “better” protection for copyright issues- ConsensusDOCS or AIA? The ever-so-hepful “it depends” is, as usual, the answer. 

Are you the owner looking to use the plans you paid for even after you terminate an architect, or are you the architect looking to protect your work product?  If you are the owner, you will probably prefer ConsensusDOCS.  If you are the architect, your best bet is still the AIA documents. 

Consider the following:

Under ConsensusDOCS 240,

  • the Owner receives ownership (except copyrights) of all documents, drawings, and data prepared by the architect or consultants for the Project, upon final payment for all sums due in the event of termination (Article 10.1). 
  • the Owner has the option of being granted copyright ownership, contingent on making all payments required, including a stated copyright fee. (Article 10.1.1). 
  • whether termination is for convience or for cause by either party, the Owner can use the documents to complete the project, provided he pays all sums due (Article 10.1.2). 
  • the Owner agrees to indemnify the architect for post-construction use of documents.  (Article 10.1.3).

Under AIA B101,

  • the architect and consultants are the owners of their respective instruments of service, retaining all rights, including copyrights (Article 7.2).
  • the Owner is granted a non-exclusive license in the instruments of service, soley for use in constructing, using, maintaining, altering and adding to the Project, provided the owner substantially performs, inclduing making prompt payments of all sums due (Article 7.3). 
  • if the Owner does not pay all sums due, if the architect terminates the contract for cause, or if the Owner does not pay an extra fee after a termination for convenience, the Owner’s non-exclusive license terminates. (Article 7.3; Article 11.9). 
  • the Owner must indemnify the architect against third party claims arising from the owner’s unauthorized use of documents. (Article 7.3.1).  
  • if the Owner properly terminates the architect for cause, there is no indemnity against third party claims and no release of the architect from the owner’s claims arising from the use of the docuemnts (Article 7.3.1). 

Do you have experience in managing copyright issues under either contract?  Which do you prefer?  Leave your thoughts in the comments section, below.

Next week, I’ll address copyright issues in non-standard construction contracts, including letter proposals.

 Photo (c) Horia Varlan via Creative Commons license.

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