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Disputes over who has ownership and rights to use or reuse the architect’s plans are becoming more common. The AIA contract documents contain language granting the architect ownership and control of the documents. It seems, however, that more owners are amending that article of the contract so that they take ownership of the documents. Serious business and risk management repercussions may result.

In the case of Eiben v. A. Epstein & Sons International, Inc., 57 F. Supp. 2d 607 (N.D. Ill. 1999), the court determined whether the project (a county government) was entitled to use an architect’s drawings for the purpose of renovating part of the original project designed by that architect ten (10) years after they had been drafted. The “instruments of service” clause of the AIA B141 contract provided:

“Drawings and specifications as instruments of service are and shall remain the property of the Architect whether the Project for which they are made is executed or not. The County shall be permitted to retain specifications for information and reference in connection with the County’s use and occupancy of the Project. The drawings and specifications shall not be used by the County on other projects, for additions to this Project, or for completion of this Project by others, except by agreement in writing and with appropriate compensation to the Architect.”

When the county built a new addition to the building, it retained the services of a different architect. This architect was sued by the original architect for copyright infringement for reusing the drawings. The court found that the use and copying of the drawings was permitted under the unambiguous wording of the contract because the activities occurred “in connection with the County’s use and occupancy of the [original] Project.” According to the court, “alteration in the use of the occupancy of a fractional part of the [original building] cannot arguably be characterized as ‘other projects’ within the contract’s meaning.” The court concluded:

“Where a change in the use of a portion of a building is involved, encompassing the partitioning of a previously open area into a number of rooms and the creation of necessary modifications in the systems serving that space, it is of course inevitable that the old plans must be drawn to prepare the new plans. [Plaintiff’s] beef that the new plans were derived from and substantially similar to his earlier drawings is much like Portia’s contention that the contracted-for pound of flesh could not be extracted unless it could be done without any accompanying drop of blood — but here [plaintiff’s] consent to use of his work ‘for information and reference’ necessarily carried with it the right to use his drawings as the basis for the new plans covering the revisions in the use of the space.”

Risk Management Note: Architects should pay attention to any contract amending the standard AIA type language concerning ownership of documents. They should maintain the ownership of the documents and the right to reuse them on other projects. If an owner insists on ownership, it is prudent for the architect to demand contract language limiting the purposes and conditions under which they may be reused by the owner, and requiring the owner to indemnify and hold the architect harmless for injuries or damages resulting from the reuse. The architect is at greater risk of liability when the owner or someone else uses its documents without its input and control. Staying involved on the project during the construction phase may enable the architect to make clarifications and corrections to its drawings that avoid problems and liability. If the drawings are modified by the owner without the architect’s input and used for different projects or different purposes even greater risks are posed for the architect. Again, one risk management solution is to negotiate indemnification and hold harmless clauses in the contract with the owner to protect the architect against liability arising out of the reuse of the drawings.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 2, No. 3 (Mar 2000).

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