selling client plans

[DianeP]

As I understand it, drawing as an employee the employer owns the plans.  However, drawing as an owner of a drafting/ design company you own the plans even if the design is given to you by your customer.   https://www.constructionbusinessowner.com/law/law/builder-beware-how-avoid-blueprint-and-building-design-lawsuits#sthash.nuulqIiv.dpuf    Have you ever had he situation arise where the owner wants to buy the rights to their plan.  Would you sell it?  If so, at what price?

[parkwest]

That was a good article, Diane.  

 

I have never had a client that wanted to buy the rights to my plans.  

 

I have had customers try to use my plans for multiple houses, ie. passing the plans on to a relative so the relative could “share” in the customer’s cost of the plan... without my consent.

[Chopsaw]

Have the clients expressed if it is just for privacy so you can't sell the plans to others, or do they intend to sell them?

 

I would think a contract would be in order either way, and the priced would be drastically different.

[lbuttery]

best to always cover this in ALL your contracts

 

don't wait for a client to raise the issue and then get mad etc

 

most of the time we worked for the builder(s) so the rights to the plan remained with the builder(s)

we were just the "drafters" putting the model and permit set together at their direction

 

Lew

[DianeP]

My contract does state that all drawings are property of my company.  I told them I don't normally sell my plans.  I have high volume builders that bring me their plans that I make changes to and these remain their plans.  Others are custom builders and individuals needing plans and I normally set the reuse fee not including structural engineer cost at $500 if I don't have to make any changes to the plan.   Pretty low cost, but I want to help the next guy make a buck, too. 

[DianneDSC]

I've had a couple custom home clients request rights to the design & plans more so to keep it from getting into the hands of a production builder. After explaining that I do not transfer rights, I point out the paragraph in our design agreement that states I will limit resell of the design, with or without modifications, to exclude future construction in the town or general area of a larger city as the original construction. I also explain that we are in the custom home design business rather than  stock plans selling business. On the rare occasions this has been brought up by a client,  my agreement and explanations have satisfied them. 

 

Although not required, I add the limitation of resell in my agreement to ease the minds of clients even if they do not bring up a concern. 

[rlackore]

14 hours ago, DianeP said:

Would you sell it?  If so, at what price?

 

Worst case: the client buys your plans and either: 1) sells them on for a profit, or 2) uses them as the basis for future designs. Measure that against the expected future value of the plans if they just sit on your hard drive for the next 20 years. What's the use of retaining the rights unless they generate value? Of course value could be several things: money, reusing the plans for other projects, etc. Personally, I would maximize your earnings while the plans still have value. I would charge based on the time invested - IOW a rate/hour fee.

[HumbleChief]

I couldn't read all of the article because of an ad blocker I use but I was curious at what point is a 'copy' of a house design no longer a copy? How much change constitutes a new and unique design? Change only the roof lines from a gable to a hip - is that enough? Enlarge the Master and move the closet - is that enough? Reverse the garage? Reverse the entire plan? Change exterior finishes? Window locations/sizes?

 

I would never consider completely copying a design because I've never seen one that didn't need my touch to become my and my client's design but I would certainly start with a sound design that a client liked (from pictures or whatever the source) and customize it, but how much would that design need to be customized it before it's no longer a copy? When should you feel comfortable that the design is now unique enough that you won't get sued and who's making that call?

[Richard_Morrison]

3 hours ago, HumbleChief said:

I would never consider completely copying a design because I've never seen one that didn't need my touch to become my and my client's design but I would certainly start with a sound design that a client liked (from pictures or whatever the source) and customize it, but how much would that design need to be customized it before it's no longer a copy? When should you feel comfortable that the design is now unique enough that you won't get sued and who's making that call?

There is a lot of misunderstanding about architectural copyrights. It's unlikely that much of any mainstream design is going to be protected with a design copyright. There needs to be an artistic element for a design copyright to exist. Explicitly exempt from copyright protection are: "Standard configurations of spaces and individual standard features, such as windows, doors, and other staple building components, as well as functional elements whose design or placement is dictated by utilitarian concerns." I doubt that any floor plan you are likely to be using for "inspiration" is going to be SO special that you really have to worry. And unless some designer is driving down the street and can readily say, "Hey, that MY design!" how are they going to know? (I'm talking here about a pictures that your client shows you, not taking plans and building them again in the same geographic area.) Even if the designer truly believed that he/she were ripped off, they would have to file a lawsuit in FEDERAL court, and unless they filed the design with the copyright office, they are limited to obtaining actual damages, which would be very hard to determine and probably not that large, as well as being quite a challenge to prove legally. I would worry far more about a lawsuit from a bad flashing detail than being sued for copyright infringement of a fairly mainstream design. Now, if your clients are coming to you with a very high-end architectural design and saying they want something almost identical, then I'd be concerned.

[AvoyeDesign]

I've never had an owner bring me their own design.  They've given me sketches and ideas, but it takes a lot of work on my part for it to become a design, which makes it my design.  I've never sold rights back to a client, but I absolutely will not use the same design anywhere near their property.

[jcaffee]

Do research or ask your attorney about work-for-hire contracts.  There are cases that a client will want all work product (plans, sketches, notes, etc.) as part of the contract.  My jumpoff point for negotiation is triple whatever usual is for the project type.

[HumbleChief]

19 minutes ago, Richard_Morrison said:

There is lot of misconception about architectural copyrights. It's unlikely that much of any mainstream design is going to be protected with a design copyright. There needs to be an artistic element for a design copyright to exist. Explicitly exempt from copyright protection are: "Standard configurations of spaces and individual standard features, such as windows, doors, and other staple building components, as well as functional elements whose design or placement is dictated by utilitarian concerns." I doubt that any floor plan you are likely to be using for "inspiration" is going to be SO special that you really have to worry. And unless some designer is driving down the street and can readily say, "Hey, that MY design!" how are they going to know? (I'm talking here about a pictures that your client shows you, not taking plans and building them again in the same geographic area.) Even if the designer truly believed that he/she were ripped off, they would have to file a lawsuit in FEDERAL court, and unless they filed the design with the copyright office, they are limited to obtaining actual damages (without attorney fees), which would be very hard to determine and probably not that large, as well as being quite a challenge to prove legally. I would worry far more about a lawsuit from a bad flashing detail than being sued for copyright infringement of a fairly mainstream design. Now, if your clients are coming to you with a very high-end architectural design and saying they want something almost identical, then I'd be concerned.

Yes but "How much change constitutes a new and unique design?" and who makes the call? ..and apparently there was enough within a mainstream design to be protected by a design copyright to sue (and win) a builder in the above mentioned article/case which seems like they blatantly used some existing plans without any changes (which seems stupid on its face but we are humans after all).

 

And how much of an 'artistic element' need be involved and when has one 'copied' that artistic element or merely been inspired by it? And who makes the call?

 

Kinda curious how the case mentioned played out...

[Richard_Morrison]

1 hour ago, HumbleChief said:

And how much of an 'artistic element' need be involved and when has one 'copied' that artistic element or merely been inspired by it? And who makes the call?

 

Kinda curious how the case mentioned played out...

Maybe this article will help: https://www.constructionspecifier.com/copyrights-in-architectural-drawings-courts-make-it-tougher/

 

To answer your questions, though: A judge or jury makes the call. But you will be hard pressed to find a case where direct and detailed copying was not involved. Defendants usually have had full access to the earlier construction plans. 

 

I think reading the Zalewski case decision is instructive in how a court is likely to think:

https://law.justia.com/cases/federal/appellate-courts/ca2/12-3448/12-3448-2014-06-05.html

[HumbleChief]

5 hours ago, Richard_Morrison said:

Maybe this article will help: https://www.constructionspecifier.com/copyrights-in-architectural-drawings-courts-make-it-tougher/

 

To answer your questions, though: A judge or jury makes the call. But you will be hard pressed to find a case where direct and detailed copying was not involved. Defendants usually have had full access to the earlier construction plans. 

 

I think reading the Zalewski case decision is instructive in how a court is likely to think:

https://law.justia.com/cases/federal/appellate-courts/ca2/12-3448/12-3448-2014-06-05.html

Those were great article Richard. I have no worries about such things but I love to learn about the defining nature of them. It looks like the burden is on the Architect to prove that the design is somehow a direct, protected, copy of the original design. Not easy from reading those two pieces.

 

Thanks for taking the time to dig those up...