Architecture isn’t Fungible

Cheryl Davis answers an audience member’s question: (l-r) Cheryl L. Davis, Partner, Menaker & Herrmann LLP; Elena Brescia, Managing Partner, SCAPE; Ronnette Riley, FAIA, LEED AP, Ronnette Riley Architect; Ariel Fausto, AIA, LEED AP, Partner, H3 Hardy Collaboration Architecture; Lynn Fritzlen, AIA, LEED AP, Ronnette Riley Architect (moderator), Co-Chair, AIANY Professional Practice Committee.

Daniel Fox

Event: Intellectual Property and the Design Professional – Panel Discussion
Location: Center for Architecture, 11.28.12
Speakers: Elena Brescia, Managing Partner, SCAPE; Cheryl L. Davis, Partner, Menaker & Herrmann LLP; Ariel Fausto, AIA, LEED AP, Partner, H3 Hardy Collaboration Architecture; Lynn Fritzlen, AIA, LEED AP, Ronnette Riley Architect (moderator), Co-Chair, AIANY Professional Practice Committee; Ronnette Riley, FAIA, LEED AP, Ronnette Riley Architect
Organizers: AIANY Professional Practice Committee and the NYASLA

What’s your property, really? Dirt, iPads, science, and the “useful arts,” to name a few. Your designs, too, are your property, according to attorney Cheryl Davis of Menaker & Herrmann. Thank the U.S. Constitution, which empowers the U.S. Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Never again ask: “What’s Congress done for me lately?”

It is indeed your right, as an architect, to copyright your designs. Retaining intellectual property can, for instance, give leverage in negotiations. And why not own what you’ve created? Writers copyright books, pop stars copyright recordings – architecture on paper is “useful art” that can bring you additional revenue.

Intellectual property laws protect the expression of ideas, however, not ideas themselves. In other words, put your designs on paper. You can’t copyright a standard window detail. But unique elements and concrete expressions (pardon the pun), flourishes, and important design modifications are more likely to be protected. You can’t protect the ur-chair (four legs, a seat, and a back), but you can protect your unique design that acts like a chair.

What about collaborative work? People can be joint owners of work, or employers can fashion a novel agreement. If you’re intent on owning all the work done under your supervision, even by freelancers, make sure your contracts include “work for hire” right at the top, according to Ronnette Riley, FAIA, LEED AP, who seems to be the authority on getting clients to pay their bills and honor agreements.

“Architects often give away work,” said moderator Lynn Fritzlen, AIA, LEED AP, a common refrain among architects and designers. Many competition agreements state that a client can use entries as they see fit, according to Elena Brescia and Ariel Fausto, AIA, LEED AP. While one might not be in a position to alter something like a competition agreement, Riley has an easy answer for clients when they ask to own the copyright to designs: “I’m not Bed Bath & Beyond. You’re not buying sheets.”

In other words, making architecture isn’t the production of a commodity, per se – it’s an iterative process that results in original designs (most of the time). Riley suggested that architects let clients know that if they are insistent about owning a design, you can suggest that a client can “own a design and release me from liability – once I’m 100% paid.” She also urged architects to license their work, when possible, to create additional revenue streams. She files for copyright right away, and since her firm executes a lot of retail work, she builds in licensing fees for certain designs.

Panelists also discussed ownership of BIM models, to which there are many contributing authors. There is an AIA Standard Form of Agreement that can help with this (E-202), and according to Fausto, every party can own its own part of the model. If you do give away the model, be sure to indemnify yourself.

The takeaway: respect your work enough to truly own it. While a client might be used to architects and landscape architects that readily sign away all rights to their designs, panelists and their successful practices illustrate that it takes standing up to a client to ensure your rights are honored. That – and a good lawyer.