Building plans copyright risks and lawsuits

[jmyers]

Does anyone have any thoughts or policies in place to protect yourself from accusations of copyright violations?  For example, consider these scenarios:

 

1. A client brings you a set of plans and asks you to redraw them. 
 

2. A client provides you with images of a design and asks you to  create a set of plans. 

 

3. A builder client asks you to redraw their plan collection. 
 

All of the above scenarios could potentially present the risk of a copyright claim and lawsuit by completing the client requests. 
 

Would anyone care to share their policies/practices or offer advice in order to avoid copyright violations and minimize the risk of copyright accusations?

 

Thanks to all who reply!

[mtldesigns]

I always wondered how does one prove you or I copied a plan? I can see if I sold one set to a builder to build one house, but then a year later I see the same house built multiple times.  That I can prove, but lets say you give me a magazine page because you just love the layout.  I get your layout close, but with different variables so its 95% the same (different kitchen sink location, a little larger footprint or I used brick in lieu of stone).. Is it a copy still?  With a million plus houses out there, even if one hasn't "copied on purpose", there has to be duplicates.  Only so much you can do with a 2000 sq, ranch, right?  So I guess to answer your original question, I don't duplicate any existing plan 100%.  I do something to make it its own unique original.  That should keep me from any litigation, IMO.  

 

Are you being accused or are you just thinking about potential liability?  

[jmyers]

7 minutes ago, mtldesigns said:

I always wondered how does one prove you or I copied a plan? I can see if I sold one set to a builder to build one house, but then a year later I see the same house built multiple times.  That I can prove, but lets say you give me a magazine page because you just love the layout.  I get your layout close, but with different variables so its 95% the same (different kitchen sink location, a little larger footprint or I used brick in lieu of stone).. Is it a copy still?  With a million plus houses out there, even if one hasn't "copied on purpose", there has to be duplicates.  Only so much you can do with a 2000 sq, ranch, right?  So I guess to answer your original question, I don't duplicate any existing plan 100%.  I do something to make it its own unique original.  That should keep me from any litigation, IMO.  

 

Are you being accused or are you just thinking about potential liability?  

Thank you for your thoughts!  I am not being accused, but have just thought about the scenarios and liability. 

[Chrisb222]

17 hours ago, jmyers said:

Would anyone care to share their policies/practices or offer advice in order to avoid copyright violations and minimize the risk of copyright accusations?

 

Just change some things around.  Tell your clients you cannot and will not copy anything verbatim, unless they can prove they own the copyright or have permission from the owner to copy.

 

This has been litigated to the point of establishing fairly clear lines of what is legal or not. You cannot copy someone's work verbatim, but you're allowed to be inspired by others' work.

 

i.e., if you're working from an existing design, change some things around and you should be good, with the caveat that anyone can sue anyone for anything.

 

I do know of one local instance where, after negotiating with a midsized regional builder, a person took the simple flyer of one of their designs (basic floor plan / ext rendering) to another small builder and copied it - just the floor plan, with significantly different exterior - and the first builder went in the building after framing and recognized his floor plan design. He threatened to sue the owner and demanded some thousands to settle. I was consulted by a mutual associate on behalf of the owner, and felt the first builder didn't have a claim since the house was greatly different. The owner decided to settle out of court, but it would've been interesting to see what a judge would decide.

 

Interestingly to the OPs question, AFAIK the second builder, nor whoever drew the final plans were involved.

[Ed_Orum]

All of my contracts carry a clause that the firm or person who supplied me with the drawings, design, or any other information like that did not copy them from any other source, and that if there is any claim for copyright violations the person who hired me indemnifies and holds me harmless against any claims, and further is responsible for any awards, damages, etc which may be awarded.
Who know if it would hold up in court, I never have used it to defend myself. 
Having said that, I never accept a plan that is obiously someone elses work without first contacting that person or firm to see if they are okay with it, and if they want a fee for use of their work.  If they are ok, its good to go.  If they want a fee, the client has to pay for it.  If the client complains they can go elsewhere.

[jmyers]

This is all outstanding information! I greatly appreciate the responses!

[Gawdzira]

@Ed_Orum Was that disclaimer written by an attorney? If not, I can write one for you that will be equally worthless if not more worthless (unless that means less worthless due to a negative detracted by an additive). 

[Ed_Orum]

Hahahahahahaha....no matter who writes it, it is pretty much worthless, which translated means I have written my share of worthless things.  However, it does show the intent on my part not to willingy reproduce any copyrighted material .

[Investmentbiz]

Early on when I first started drawing PEMB plans for my own company where I built several spec AND custom buildings and then leased them for long terms, I was approached by a company who wanted a significant custom office/warehouse plan. I drew it and modified it at least 4-5 times (I am in NO WAY an Architect or Architect student just a filthy, stinkin' capitalist who enjoys building commercial or residential buildings & drawing them) and then the company that asked all of this to be done, goes dark. A friend of mine who knew I had been working with them said "Hey those guys are building a new building way on the east side of town... So, I drove over, it was late in the day and the building was open, so I just looked around and realized they had taken my "review set" and built almost the exact same building! So, I had an attorney friend (oxymoron, I know) send them a letter and I sued for something like $25,000! I knew I would never get that, but I wanted to set a tone with these folks about directly stealing my work & time and almost literally within a few days start building on another piece of property with the plans I had loaned them to review. They settled for about $5,000, But I was really thankful that starting about 3-4 weeks before I started dealing with them, I realized I had no such warning against someone using my intellectual property to build a "like kind or substantially similar building..."

[RobDesLLC]

On 10/18/2023 at 1:47 PM, jmyers said:

Does anyone have any thoughts or policies in place to protect yourself from accusations of copyright violations?  For example, consider these scenarios:

 

1. A client brings you a set of plans and asks you to redraw them. 
 

2. A client provides you with images of a design and asks you to  create a set of plans. 

 

3. A builder client asks you to redraw their plan collection. 
 

All of the above scenarios could potentially present the risk of a copyright claim and lawsuit by completing the client requests. 
 

Would anyone care to share their policies/practices or offer advice in order to avoid copyright violations and minimize the risk of copyright accusations?

 

Thanks to all who reply!

 

In Scenario #1, I do not redraw the plans without first contacting the original architect or designer to acquire their permission to do so. If they will not allow it, I refuse to do the work for the client. I always advise the client that it would be in their legal and financial interest to attempt to work with them on revisions rather than myself.

 

In Scenario #2, I advise the client that I will use the images only as reference material for style or to incorporate particular design elements, but I will not attempt to recreate someone else's design.

 

In Scenario #3, I ask the builder to state that they own the plans as their intellectual property, and I confirm this with the original architect or designer. 

 

I protect my own intellectual property with the following contract clause:

 

Quote

 

Consultant reserves the right of ownership and copyright to all documents and drawings produced under this Agreement, and does, by full and timely payment of all fees and expenses due under this Agreement, license the documents and drawings to Client only for their singular use in the construction of the project on the property described herein. Client acknowledges that the use of the documents and drawings produced under this Agreement for more than a single use, and/or on a property not specifically described by PID # or Tax Map # within this Agreement, is unauthorized and constitutes a violation of the intellectual property rights of Consultant. Client does therefore agree to pay Consultant for each unauthorized use an additional sum equal to 200% of the fees and expenses previously paid to Consultant under this Agreement, as well as all collection fees, attorney’s fees, court costs, or other expenses necessary to recover payment for unauthorized use.

 

If Client reuses or makes any modification to Consultant’s designs, documents or work product without the prior written authorization of Consultant, or uses the documents without retaining Consultant, Client agrees, to the fullest extent permitted by law, to release Consultant, its officers, directors, employees and subconsultants from all claims and causes of action arising from such uses, and shall indemnify and hold them harmless from all costs and expenses, including the cost of defense, related to claims and causes of action to the extent such costs and expenses arise from Client’s modification or reuse of the documents.

 

 

I mark all conceptual and preliminary plan sets as "NOT FOR CONSTRUCTION" in 1.5", bold, semi-transparent red letters across the entire title block. I also label my plan sets as "CONCEPTUAL SET", "PRELIMINARY SET", "ARB FINAL SET", "PERMIT SET", and, "CONSTRUCTION SET" in the title block, just above the sheet label.

[jmyers]

On 10/26/2023 at 11:29 AM, RobDesLLC said:

 

In Scenario #1, I do not redraw the plans without first contacting the original architect or designer to acquire their permission to do so. If they will not allow it, I refuse to do the work for the client. I always advise the client that it would be in their legal and financial interest to attempt to work with them on revisions rather than myself.

 

In Scenario #2, I advise the client that I will use the images only as reference material for style or to incorporate particular design elements, but I will not attempt to recreate someone else's design.

 

In Scenario #3, I ask the builder to state that they own the plans as their intellectual property, and I confirm this with the original architect or designer. 

 

I protect my own intellectual property with the following contract clause:

 

 

I mark all conceptual and preliminary plan sets as "NOT FOR CONSTRUCTION" in 1.5", bold, semi-transparent red letters across the entire title block. I also label my plan sets as "CONCEPTUAL SET", "PRELIMINARY SET", "ARB FINAL SET", "PERMIT SET", and, "CONSTRUCTION SET" in the title block, just above the sheet label.

Thank you!!!!  This was a very informative and exceptional response!