Intellectual Property Rights

[Samantha Danforth]

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!

[Andrew Garulay, RLA]

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

 

 

[Alan Ray, RLA]

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.

[Samantha Danforth]

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

[Samantha Danforth]

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

[Jason T. Radice]

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.

[Samantha Danforth]

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

[Jason T. Radice]

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

[Samantha Danforth]

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.

[mauiBob]

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.

[Andrew Garulay, RLA]

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).

[mauiBob]

I think there seems to be some confusion on a “design” or “product”. If you have a patent on a design or product, then No, people can’t duplicate it. But, a landscape design of a neighborhood park or residential backyard for instance, can be copied to another location. Or are there specific elements in the park or backyard that are protected by copyright? Was it mentioned in the original contract?

Okay, is a sculptural railing equivalent to the invention of wheel? Was the railing a standard ready made item and then, slightly modified in the drawing? Lots of gray areas in this issue. Bottom line, if it wasn’t in the contract, then you have no case. Just get your money and move on. If you are actually thinking of suing then you are completely nuts!! It will cost you more $$ to pay the lawyers than what you would get in return. Unless its in small claims court. 

[Jason T. Radice]

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.

[Jordan Lockman]

It is always difficult in these situations. You have a client that you want to keep and get referrals from, but you don’t want to lose all your income on this project.

It is always best to be up front on these things in the beginning and legal action is probably over kill. The client may not even know they are doing something wrong. So make sure you talk to them civilly before you get too far down the legal action road. It is a small world, contractors and other clients share these stories.

[Andrew Garulay, RLA]

Let’s not overlook whether it was necessary to provide such a detail in the first place. We learn that this is what LAs do while we are in school. Sometimes it is exactly what you should not do. I don’t know which was the case here, but we should be aware of this.

 

If the design is sold as a separate service so that a client can either accept your construction proposal or choose someone else, it would make sense that the drawings would be used to build the project.

 

This problem may be largely due to the fact that you provided a detail that you may not have needed to.

 

It is not a good idea to draw construction details for the client, if you are a design/build, to any more extent than to give an idea of what you are going to do for them. It is generally assumed that you know how to build it. Too much information makes it that much easier for others to build it. It also adds to the expense of design which then makes it harder to sell. Design/build is generally more about getting the profits from the build and getting the job by selling the design. Why would the client need this shop drawing?

 

There are many ways to protect your work. Copyright labels, contract agreements, and knowing when a detail is needed to be provided or not are three big ones. It sounds like none of those were done here. I’m not saying that I do all of these every time, but if I am trying to protect a certain detail, I do. The rest I just let go.

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