era | Who Owns a Design
You have an Idea
You take the idea to someone who draws it for you
Who owns the design?
Ideas cannot be owned, but as soon as those ideas hit the page, they can be owned by someone.
That ownership belongs to the person who has put those lines on the page, unless they have expressly given ownership to someone else.
I am not a lawyer, so I cannot give professional advice with relation to legal matters. And I do not use formal language to describe the rights of ownership. But as an architect it is professional courtesy to understand the requirements of who owns the rights to a design, particularly if you are working on a project that has been commenced by another designer.
Ownership and Rights
There are several types of ownership for a design.
In Australia, these are called intellectual property rights.
They include copyright, moral rights and implied licence.
Copyright of a design gives the owner the right to use the design - to change it or use it in any way.
This right is one of the strongest and most well known. The owner of copyright is usually the person who has prepared the design, unless ownership has expressly been passed onto someone else in writing.
Moral Rights of a design give the owner the attribution of the design. That is, whoever has prepared the design is given credit for that work. The owner of moral rights is usually the person who has prepared the design and this type of ownership is rarely passed on to someone else.
Implied Licence is where a design of architecture has been made for a certain place and that design has been made with the intention of being used to follow a process to finalise the design, prepare documentation and construct the building. As such, there is an implication, or an implied licence, that the design prepared for that place at the beginning, or in fact at any time through the process, will be taken to its intended completion in building the design. The owner of the implied licence is the client who has employed the architect to prepare the design. If the client and architect part ways, there is an implication that the client can take the design forward to be finalised and built for the place it was intended.
How does it work in practice?
I have been surprised by how many times I have been asked to take on another designers work and continue the process with a client.
There have been many different reasons for why a project is passed on from one designer to another.
The initial designer may have been too busy to finish the work | they may not have been a good fit for their client | they may have moved on and not be around any more to complete the process | the brief may have changed
But how does it happen?
Who owns the design?
Can it be passed on to another designer to continue the process?
A client has the right to move on from an architect or designer and choose a different path.
The simplest way to do this is at the end of a stage in the process, such as when a certain part of the design process has been completed and all invoices paid. Then a clear line in the sand can be made and both parties can move their separate ways - hopefully with a clear understanding of where each is headed and with each others rights intact.
Usually a client has reached a certain point in the process where it becomes impossible or not suitable to continue working with the architect or designer that has been preparing their design.
They approach another architect or designer [sometimes me!] and usually ask if I can draw something up for them.
They may already have a design drawn by the previous designer and they would like to tweak it or keep it the same, but develop it further with the ultimate aim to build their architecture.
The first thing I like to ask at this point is if they know who owns the copyright for the design.
Sometimes this is known, and otherwise not.
Regardless of who the owner is, I will advise them to get in contact with the previous designer to request that the design can be used | modified | taken on by another architect. Having something in writing ensures that everyone is clear about what is happening and that the design is passing onto someone else.
Continuing the design, which may involve modifications, does not mean that the original architect or designer can’t still be acknowledged as the designer of the architecture. Their name can be written on drawings or in publication where the architecture is recorded as the original designer of the work. They may not wish to be associated with the design any more, but it is worth offering this to them to ensure that their moral rights are met.
If a point in the process has been met where both parties are ready to move on with a clear path for each, it can be straightforward to take the design that has been completed and continue it through the process to achieve an end goal.
The simplest way to ensure that everyone is on the same page about each others rights, is to sort out an agreement at the beginning of the process in working together.
This may seem uncomfortable at first, to speak about some pretty specific things, but what it does is put everyone on the same page about how they will be working together, when they might finish working together and what will happen when that time comes.
What happens if no agreement is made and an architect or designer doesn’t want to give ownership of their design to you?
That’s a pickle!
And a good reason to start off working with an agreement.
You basically have to start from scratch. And a new design cannot have the faintest trace of the original.
Using another designer, or taking on the design yourself, may help to interpret your brief in a different way and therefore end up with an alternative design that suits you and has changed enough that it doesn’t replicate the original.
You just have to get that original design out of your mind and figure out something new!
Can you take a design that you have ownership or rights to and use it in another place?
A design is specific to the place it is designed for and therefore cannot be replicated in another place, unless there is a specific agreement or similar to allow that sort of replication.
Summary
Make an agreement that includes rights of the design before you commence.
it is ok to move from one architect or designer to another, but that can be tricky if the lines in the sand about rights or ownership are not clear.
This one can be tricky to navigate if you are not sure of your rights and the rights of your architect or designer.
So just have a chat, be clear with each other and put it all in writing.
Useful Links
INTELLECTUAL PROPERTY RIGHTS
Architects and Intellectual Property: Protecting Your Building Plans and Designs
Written by Michael Bampton | Partner of Henry Davis York Lawyers
‘Architects are engaged to provide a wide range of services including preparing drawings, designs, plans and/or models of buildings to enable development approvals to be obtained for and construction to occur. One issue that arises from time to time is what are the parties respective rights when the architect's retainer is terminated prior to completion of the services. It is important to understand who rightfully owns copyright and moral rights which are referred to as the intellectual property in the work produced by the architect prior to termination of the retainer, and the protections afforded an architect to protect his or her work. The purpose of this paper is to examine architects' intellectual property rights in relation to their works. In doing so, it will consider copyright law under the Copyright Act 1968 (Cth) (Act) and moral rights under the Copyright Amendment (Moral Rights) Act 2000 (Cth). The paper will also address the issue of a clients' implied licence to use the product of the works they commission, and provide guidance to architects on how they can maximise protection of their rights so as to prevent unauthorised use of their works.’
Read the full document here
COPYRIGHT
Copyright in Architecture
Written by Alexandra Shaw of LegalVision
‘Some people say that imitation is the sincerest form of flattery. However, when you have put so much time, effort and money into your own work, the last thing you want to see is someone else reproducing it. As an architect, it is important to ensure that your drawings, designs, layouts and plans are all protected. This article explains copyright in architecture and how to protect your designs.’
Read the full article here
MORAL RIGHTS
Moral Rights in Architecture
Written by lawyer Jonathan Kenna for Architecture Australia
‘Unlike copyright, only individuals can hold moral rights. This means that an architectural partnership or company cannot exercise the moral rights of its partners, directors or employees. When a number of architects contribute to a project, if their contributions are divisible, each will hold moral rights in their divisible portion. If their creative contributions are indivisible then each will hold moral rights in the whole.’
Read the full article here
IMPLIED LICENCE
Copyright in Architectural Plans
Written by Michael Sutton
‘A recent High Court case confirmed that architectural plans forming part of a development consent may be used by the owner of a property, which has the benefit of a consent, even if it was not the architect’s client (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd [2006] HCA 55 (6 December 2006)).’
Read the full article here
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