Intellectual Property Rights

Do any of you have information or resources regarding intellectual property rights and rights to design drawings? I have a BLA and I am a recently licensed landscape contractor in California. I have been creating conceptual designs for clients and have recently started installing them. Contract language and legal issues are still new to me, and I have just run into my first hiccup:

I created a design for a sculptural railing for a client and I submitted an installation estimate to her last week. I just got word from the welder I work with that another contractor is using my drawings to generate an estimate. The client has NOT paid the remaining balance of the design fee. Does the client have the right to use my design at this time given that she hasn't paid in full? If she had paid the remaining balance, would that give her the right to use the drawings? Since I am not a licensed LA, I stated in the contract that the drawings were not to be built from but were to be used to communicate design intent. Does that offer me any legal protection in this situation? If this other contractor installs it, will I be potentially liable in the event that something happens down the road?

Thank you in advance for any advice or guidance you have to share!

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Permalink Reply by Andrew Garulay, RLA on June 14, 2012 at 8:12pm

Do a google search on "copyright". I think you'll find that it is easier to protect than you might think.

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Permalink Reply by Samantha Danforth on June 14, 2012 at 9:40pm

The copyright google search is very informative. Great (and now seemingly obvious) advice.

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Permalink Reply by Alan Ray, RLA on June 14, 2012 at 9:15pm

You own the copyright to your design. No one may use, copy, publish, alter or change the design without your permission.

Not the contractor or the client even if she has paid for your design. You own it....We need to sue more people for mis-using and bastardizing our designs. We do have the law on our side.

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Permalink Reply by Samantha Danforth on June 14, 2012 at 9:34pm

Thanks for the information! Do you know any sources I can cite?

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Permalink Reply by Jason T. Radice on June 14, 2012 at 10:17pm

That has to be spelled out either in the contract that the information is not be used by anyone else, or in a disclaimer on the drawings themselves. If there is no contract or disclaimer...there is no copyright.

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Permalink Reply by Samantha Danforth on June 14, 2012 at 10:30pm

Can you cite your source? From what I've been reading, that doesn't seem to be the case.

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Permalink Reply by Jason T. Radice on June 15, 2012 at 12:30am

You DO HAVE a copyright on the drawings for unplublished works when you create them, and more limited protection when you publish the work (give it to the client) However, the copyright only prevents the client from making another copy of the drawings and giving it to their shop to make an estimate. If the shop is using the original drawings, there is no copyright violation and the estimate solicitation is legal.

The only way to prevent a third party from using the drawings is to include a clause in your contract stating that you own the drawings...and their content...and that you expressly prohibit unauthorized reproduction or distribution to third parties without your consent. It is also a good idea to state as such on your construction drawings, and include a copyright claim (circle-c with your name and date) as a warning not to copy the drawings. This is standard industry practice with a large paragraph in very small print to appear on the drawings themselvels, or on the title page. It is common sense CYA. I really wish that this kind of stuff would be covered more in trade pubs or taught in schools.

The drawings themselves should always have a 'Not for Construction" stamp on them, so the other welder knows they cannot legally build from them, and if they did, any libility is totally on their heads. If you have a non-construction clause in your contract, you should be protected from liability by the contract if they indeed are built.

I've been doing a bit of research on this stuff for a little while, and I am surprised with how vague some things are and what is covered by copyright, and what is not. Copyright pretty much covers finished works and protects them from being reproduced. It does not protect an idea or fair use of the work that is copyrighted.

Sources:

http://www.copyright.gov/help/faq/faq-protect.html

http://www.tms.org/pubs/journals/JOM/matters/matters-9509.html

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Permalink Reply by Samantha Danforth on June 15, 2012 at 10:17am

Thanks for the thorough answer. I am going to meet with a lawyer friend to discuss my situation, which seems pretty straight forward. I will definitely post anything I learn.

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Permalink Reply by toby on June 28, 2012 at 11:51am

The OP has an uncompensated work issue, not a copyright issue. It really doesn't matter if the railing is ever constructed.

Jason, are you sure about the first paragraph you wrote ?

If I buy a book, I can copy the pages for making my notes on. What I cannot do is copy the book and sell/handout the copies for others to avoid the purchase of said book.

Works for plans too. There should be no legal issues with a client making copies of plans to hand off to various contractors for bidding purposes if the client has compensated me for that design.

However, if that client owns two properties that are very similar, they cannot legally contract(buy) for plans for one property, and then reuse those same plans without compensation. This could be applied to work within a single property.

Similarly, if a contractor receives a set of plans for bidding purposes, they cannot perform work according to those plans on another project (compensated or not).

asking for compensation for every bid set seems a bit too much.

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Permalink Reply by mauiBob on June 15, 2012 at 6:20pm

Heed Jason's advice. You made the mistake at the start. You need proper verbiage on your proposal or contract protecting your design. And, from my understanding, once the client has paid for the design in full, they can use it for whatever purpose they see fit. Unless, your design or product has a patent.

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Permalink Reply by Andrew Garulay, RLA on June 17, 2012 at 5:20am

A design is not necessarilly owned by those who pay for it. The rights to use it for the particular project is their's, but if stated in the contract and/or on the document(s), it can not be continually used on other projects. This is very commonly written on architects plans and is a subject covered in the standard AIA Appendix (look in the back of your pro practice text book "Ready, Set, Practice" by Sharkey page 239, Bob).

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Permalink Reply by Jason T. Radice on June 17, 2012 at 4:29pm

This is common language in the contract, and it is due to the whole "prototype" design practice, mostly used by chain restaurants and retail stores. It is in the contract because they tend to build one of four or five slightly modified versions of the same design, sometimes numbering in the hundreds of buildings. Generally, with these, new sets of drawings are created for every building, and all you may change is the title block.

More common is the use in residential archietcture or landscape. Cookie-cutter housing developments have you build the same dwelling, or gove you a choice of a few styles. Then, they rubber-stamp a minimal landscape in there to meet the HOA requirements. The designer may be paid more upfront to develop a standard design with unlimited uses by the client rather than a per-use fee. Again, it comes down to what is in your contract.