help! who owns your design plans - you or the designer?

mimi89February 28, 2010

I'm having a small house built on a difficult site & commissioned Builder A & his in-house designer to develop original house plans for my home, w/the expectation that Builder A would do the construction. I never had a written contract with Builder A. After 2 years (!) my design plan was finished & all permits finally obtained, but Builder A's construction estimate had doubled, & I'd lost confidence in him. In late 2009, I hired Builder B to do my construction. There are new permit issues, & Builder B wants the complete CAD permit set of design plans from Builder A, who refuses to give me anything more than a few (useless) elevations. I paid Builder A (& his in-house designer) in full for my house plans in 2009 - aren't they now my property & shouldn't I now be able to get the full CAD set? Thanks for any advice!

Thank you for reporting this comment. Undo

Depends. The big problem and sticking point is that you don't have a contract. I'm afraid that he's going to say the plans are his (and his designer's) intellectual property. However, if you have a receipt proving that you paid for the plans, it will likely come down to what's written on the receipt (i.e. did you pay for the plans outright, or was the money you paid for the plans a design fee and you can use their intellectual property so long as you hired Builder A?).

It's a sticky situation. What will be cheaper: hiring a lawyer to fight it out, or having Builder B draw his own plans? You should have a pretty good idea of what the house looks like, so he won't have to make revision after revision.

    Bookmark   February 28, 2010 at 1:11AM
Thank you for reporting this comment. Undo

In a design contract you would normally have the right to use and copy the design documents for the purpose of building one project. The original CAD drawings would normally remain the property of the author as "instruments of service" unless otherwise stipulated in the contract.

Even if you had entered into a written contract, you would probably have been expected to pay an additional fee in order to receive the CAD files.

Usually only government agencies or large institutions insist on ownership of the CAD files in the design contract and they pay well for that.

What you paid the builder might not have covered the cost of producing the drawings so make him a fair offer for the CAD files and see if he takes it.

    Bookmark   February 28, 2010 at 9:24AM
Thank you for reporting this comment. Undo

Absent a written agreement to the contrary, an original house design is considered a work for hire and copyright ownership resides in its creator, not in the party who commissioned the design.

In plainer words, he owns the copyright and you don't. However, as macv says, you do have the right to copy and use the plans to build your house.. Apparently, you don't have anything but the elevations. While you're not likely to be able to force bulder A to give you a copy of the CAD files, he should have provided you with a copy of the prints because, after all, you've already paid for them. By withholding them, he is in breach of contract--a contract doesn't have to be written to be enforcable, although it sure helps if it is.

There are a few things you can do if he won't sell you the CAD files as macv suggests. Write him a letter, or hire a lawyer to do it, informing him he is in breach of the contract and demand he provide you a copy of the prints forthwith or you will sue, etc. The problem with this is that builders as a group are cowboys and tend to do pretty much what they want, law or no law. So you'll need to be very tough to make this work. If he's licensed by the state, a complaint to the licensing board would be in order if he doesn't comply or also to any other trade group he's involved with.

You also have a more passive and sneakier option. You can go down to the local authority that issues building permits and keeps copies of the plans on file. These should be available for public inspection. Get them and make copies.

Once you have your set of prints, your new builder should be able to work with them to resolve the new issues that have come up.

    Bookmark   February 28, 2010 at 10:57AM
Thank you for reporting this comment. Undo

We are in a very similar situation. We decided it was cheaper to hire a draftsman from an architecture firm to re-do our plans than it was to hire an atty to fight for the plans from builder A. I did send a request for the CAD files of the plan, mentioning that our agreement (and the payment) were for blueprints and we were only given a floorplan, which is from the step before the design phase we paid for. I cc'd it to our lawyer. They lawyer isn't to act on it, just that her name is attached to our request, just in case the builder decided to hand it over instead of fight. But I have not heard back from them.

Good luck!

    Bookmark   March 2, 2010 at 11:43PM
Thank you for reporting this comment. Undo

In my experience homeowners usually expect to receive prints of the latest design documents before paying for them. Normally, getting the original CAD files would not be considered part of that service.

Since the archaic "blueprint" copying process has been replaced by the diazo blue/blackline contact copying process, the plain paper xerography copying process or the direct-to bond paper from CAD inkjet plotting process, contracts should specify the printing method, scale and frequency of submissions to the owner.

A digital CAD file would be considered an original document rather than a copy since it carries the name of the author and can be changed without detection or notice to or approval from the author raising frightful potential liability issues. Such documents are always the property of the author unless the contract specifically transfers ownership, usually at the completion of the construction project and the documents are formally modified to be "as-built" for the purpose of facilitating future changes and facility maintenance and management.

    Bookmark   March 3, 2010 at 7:00PM
Thank you for reporting this comment. Undo

We found ourselves in a similar situation years ago. Here's what we did: We contacted the architect DIRECTLY who created our home design. Now, the situation was slightly different from yours in that the architect was not "in house," but it was the same in all other respects (he got refernces from the builder, builder built his homes, builder delivered payment from the homeowner, builder did not include any of this in his contract to build).

We told him that this is where we are, here's what we need right now, and here's where we need to get to. He was very pleasant (that's helpful!) and we indicated that we didn't have any interest in starting over with a new designer, we may still need to make some modifications to the plan, etc. The designer was more than happy to send us a contract so that we designated exactly who was a party to the agreement and negotiated terms that were agreeable to us all. In essence, the contract acknowledged that the architect had already received payment for drafting the original plan, and it set forth specific pricing terms for an array of additional services, i.e. additional meetings, copies of the plans, modifications. To this day, this contract is in effect and we know that we could go back to this architect directly, cutting out Builder A, if we ultimately decided to build and/or modify the plan. This was a win-win solution for us and the architect.

    Bookmark   March 5, 2010 at 7:50AM
Thank you for reporting this comment. Undo

learn as i go, what you describe is the normal relationship between an owner and an architect. I did some work for a builder once and will never do it again. It is best if an architect's duty to the owner is not compromised.

    Bookmark   March 5, 2010 at 7:58AM
Thank you for reporting this comment. Undo

Just to clarify the ownership situation -- the party who creates the house design, be it architect, designer, builder or whatever, owns the copyright. That means that no one else may make a copy of the design in any "tangeble form." That includes copying the CAD files, copying the prints, copying the elevations, copying the floorplans, or even copying the design of any house built from the plans, unless they have permission from the copyright owner.

Of course, the party who pays for the design has the right to use it to build a house, and since a complete set of prints would be needed to construct the house, the copyright owner has a legal obligation to provide the future homeowner with a usuable set of prints in whatever form spelled out in the contract. But, as already pointed out, this would not extend to turning over the CAD files unless specifically stated in the contract.

The OP's problem is that the parties didn't enter into a written contract. Accordingly, there's no way to make an argument that the builder should turn over the CAD files. But there's also no way the builder can legally refuse to provide a set of prints.

Getting him to do so is the real problem, here.

    Bookmark   March 6, 2010 at 1:45PM
Thank you for reporting this comment. Undo

As an aside, lots of plans float around amongst builders via the trades who quote on jobs based on the plans. I've got a few myself. And while I wouldn't build from plans I hadn't paid for, lots of spec builders will. Accordingly, I try to restrict the number of plans I send out and retrieve them from trades who aren't selected. Why should I pay up to $18,000 for custom plans only to have them copied for free by someone else--even if what they're stealing isn't strictly speaking my property?

    Bookmark   March 6, 2010 at 2:52PM
Thank you for reporting this comment. Undo

This is all academic to me. When I design a house it is for a particular client, site, and program and I don't expect to ever use that design again although I might reuse some of the elements and ideas. I'm selling my services, not a house design. Consequently, I couldn't care less who copies the drawings or the design. Perhaps my clients would care but that is their concern. If a client wanted the CAD files, I would just take my name off of them and send them by email.

    Bookmark   March 6, 2010 at 9:27PM
Thank you for reporting this comment. Undo

feeding frenzy said, Absent a written agreement to the contrary, an original house design is considered a work for hire and copyright ownership resides in its creator, not in the party who commissioned the design.

Work for Hire becomes property of the person who did the hiring ... I do "work for hire" a lot, and the company that hires me gets all rights, including copyright.

Did you mean "is NOT considered" work for hire?

    Bookmark   March 7, 2010 at 5:31PM
Thank you for reporting this comment. Undo

lazygardens is correct, there should be "not" added. If a work is "made for hire," the employer, and not the employee, is considered the author.

However, when a client hires an architect to design a house the architect is providing a professional service and not acting as the client's employee and not providing "a work made for hire" unless the parties expressly agree in a written document signed by them that the work will be considered a work made for hire or, in simpler terms, the employer is the author and owns the copyright.

The issue with full time employees is easy but hiring an independent contractor does not in itself give the employer authorship rights so it is very important for the issue to be settled in writing before the work begins.

    Bookmark   March 7, 2010 at 6:49PM
Thank you for reporting this comment. Undo

Yes, I did scramble up my original explaination. If it's a work for hire, than ownership rests in the employer. But the mere act of paying someone to create a house design for you (the OP's situation) does not make the resultant design a work for hire becasue the creator (the builder in this case) is clearly an independant contractor. Absent an agreement to the contrary, he owns the design.

Unless the creator is a full-time employee, it's unlikely that that a design would be considered a work for hire. The company that hires lazygardens on what sounds like a less than full-time basis must do so under a contract that specifically states that it owns the copyrights. Otherwise, the copyright ownership would default to lazygardens.

Thanks to you both for spotting this.

    Bookmark   March 11, 2010 at 5:15PM
Thank you for reporting this comment. Undo

Many, many thanks to all for your invaluable advice - we were finally able to "persuade" the original builder via threat of legal action (sounds like we didn't really have grounds! Oh well...) to give us the complete CAD set. Apparently we were very lucky, based on most of the views stated above! Still having permit probs, but none related to the CAD set, at least. This site is such a godsend, I truly appreciate everyone who takes the time to respond to questions.

    Bookmark   March 27, 2010 at 10:04PM
Sign Up to comment
More Discussions
Reviews on Corinthian Columns?
Hello, I'd like to know if anyone have used fiberglass...
homebuilding newbie
Looking at houses in my hometown today
So today I went to my hometown and drove around looking...
Floorplan review
Hi everyone. My husband and I are working on building...
Using a contractor question
My husband and I are wanting to build a home. We sat...
What is your favorite feature about your house?
Do you have one or several favorite features or a...
Darla Grossman
Sponsored Products
Faceted Hanging Planter
| Dot & Bo
Hydro Systems Cassi 6042 Tub
Modern Bathroom
Light Blue Vase Base Bell Shade Indoor Table Lamp
Hazel Hedgehog Garden Statue - 327
$44.99 | Hayneedle
Square Free Standing Toothbrush Tumbler Available in Multiple Finishes
Ava Area Rug
Grandin Road
Copper 3'' Luster Votive Holder
$7.49 | zulily
Marina Coverlet with Shams Sold Separately
People viewed this after searching for:
© 2015 Houzz Inc. Houzz® The new way to design your home™