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California ownership of drawings

mark handler

mark handler

SAWHORSE
Joined
Oct 25, 2009
Messages
11,678
Location
So. CA
In response to misstatements on other posts

In California the the ownership of drawings and designs are retained by the Architect

California Assembly Bill No. 630

CHAPTER 453

An act to add Section 5536.4 to the Business and Professions Code, relating to architects.

[Approved by Governor October 1, 2013. Filed with Secretary of State October 1, 2013.]

legislative counsel’s digest

AB 630, Holden. Architects.

Existing law establishes the California Architects Board within the Department of Consumer Affairs for the purpose of regulating the practice of architecture in this state. Existing law defines what constitutes an architect’s professional services.

This bill would provide that no person may use an architect’s instruments of service, as specified, without the consent of the architect in a written contract, written agreement, or written license specifically authorizing that use. The bill would prohibit an architect from unreasonably withholding consent to use his or her instruments of service from a person for whom the architect provided the services, except as specified. The bill would provide that this act is a clarification of existing law and does not take away any right otherwise granted by law.

The people of the State of California do enact as follows:

SECTION 1. Section 5536.4 is added to the Business and Professions Code, to read:

5536.4. (a) No person may use an architect’s instruments of service, as those professional services are described in paragraph (2) of subdivision (b) of Section 5500.1, without the consent of the architect in a written contract, written agreement, or written license specifically authorizing that use.

(b) An architect shall not unreasonably withhold consent to use his or her instruments of service from a person for whom the architect provided the services. An architect may reasonably withhold consent to use the instruments of service for cause, including, but not limited to, lack of full payment for services provided or failure to fulfill the conditions of a written contract.

SEC. 2. The Legislature finds and declares that this act is a clarification of existing law and does not take away any right otherwise granted by law.
 
As a Building Official, I cannot provide Architect Stamped drawings to the building owner without the Architects written consent .

The qwnership of the plans does not run with the ownership of the building. It is questionable that if there is a different owner than the one contracted with the Architect, does the Architect have to provide Consent?
 
There is a procedure for supplying an owner (original or current) with copies of the permit drawings if the design professional is given notice and the design professional has not responded in 30 days. Reference Health and Safety Code Section 19851.

We need to keep separate the ownership of the drawings from ownership interests in the building permit.
 
5536.4 addresses usage, not ownership, I agree with the statement regarding copyright protection. If ownership of the drawings was retained by the architect then a complex license agreement would have to be executed, for instance, Microsoft retains ownership of all of it's programs, but if anyone bothered to read the EULAs they would see that they bought a license to use them, they didn't buy and they don't own the actual programs. Frankly I don't think architects would want to retain ownership, along with ownership comes some responsibilities such as maintenance, if the architect did retain ownership I can see claims that the architect must bring the plans he owns up to current code since he owns them, what if the owner refuses to pay the architect to maintain their plans in current code compliance? in rem law can be complex
 
The architect and engineers create plans for improvements on a piece of real property, the owner, or an agent of the owner, obtains a permit incorporating those plans in furtherance of improving the property, the permit is now part of the real property and the architect now has the right to lien and foreclose that property, the permit is part of the property, and no-one can separate ownership of the permit and the property.
 
There is also Federal Copyright Protection
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I will add to this that the Federal Copyright laws applies to both licensed architects and other building design professionals as the nationwide Federal laws does not differentiate licensed & unlicensed. While a local federal enclave may adopt enclave regulations regarding practice of architecture but the copyright office doesn't care about that stuff. Licensing pertains to state and certain federal enclaves. Outside that, it is not regulated by statutes. Just so we understand that as the building codes would and state law would not usually understand those issues.

I will submit for viewing sake as a general contribution to the profession and the discussion not only as it may apply to California but also other jurisdictions. By federal law, you never make reproduction unless you take genuine effort to contact the copyright holder and also take into consideration what is the intent of the person.

Link to a good document on copyright written by a lawyer:

http://www.aibd.org/copyrightbasics/

This is available through the AIBD. AIBD membership is not required. It is lengthy.

This last part is more a tangent:

Add to that, I talked about on another forum about using holograms on building plans and a variety of additional methods of detecting unauthorized copies. I suggest this by design professionals (licensed and unlicensed) for permit submissions. Due to the fact that holograms are extremely difficult to replicate accurately through cheap copiers, it would be easily detectable if someone was submitting unauthorized copies. Even copies made by building departments should not be deem to be authorized for purposes of building permit submissions. Yes, design professionals do care about copyright and continued liability over illegal copies of plans being submitted at various building departments and not just the same department. Respecting copyrights and keeping the building departments from aiding and abetting unauthorized copies or accepting unauthorized copies of plans. How to go about it would involve some level of discussion. While the above is for physical prints. Digital submissions is another beast altogether.

I'm not suggesting holograms usage in lieu of an architect/engineer stamp. Those are completely separate matters.
 
When drawings are submitted to the building department they may be subject to your states Freedom Of Information Act regardless of copyright or ownership.
 
I think there is a big leap between complying with FOI laws and "take whatever copies you want".

FOIA provides the public with access to view the documents, under some circumstances Some states may have specific FOI exceptions, sometimes for security reasons ("where did they install that wall safe?").

There is a major exception in the FOIA in the case of "trade secrets" that would result in financial loss to the copyright holder. May architects would view their standard plans or BIM files to contain commercially valuable copyrighted information.
 
At some point "intent" comes into play, it's one thing for me to go into a building department and get a set of plans to copy them for a building on another site, it's totally another thing for me to go into a building department to get a set of plans to determine what was there to remodel or alter the building.

I learned a long time ago to have the architect and all engineers to assign copyright to me upon payment in full.
 
Our attorney has instructed us that anyone can look at plans and take photos. If they want hard copies fill out the FIO form and specify what you want copies of. Yes some things are not included and are redacted or not provided. Just like I cannot enforce ADA rules I am not the copyright police and have no authority to enforce those regulations.

Having a copy of a copyrighted set of plans may not be against the law it is what an individual chooses to do with them that may violate the copyright.
 
mtlogcabin said:
Our attorney has instructed us that anyone can look at plans and take photos. If they want hard copies fill out the FIO form and specify what you want copies of. Yes some things are not included and are redacted or not provided. Just like I cannot enforce ADA rules I am not the copyright police and have no authority to enforce those regulations.

Having a copy of a copyrighted set of plans may not be against the law it is what an individual chooses to do with them that may violate the copyright.
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We only allow what is visible from the right-of-way. Our interpretation is that the layout of the house is protected under provincial law. We do provide copies to the homeowner though, usually for renos, but sometimes just because they want it. Actually, we provide all our records to the owners. Inspection reports, photos, you name it.
 
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