TOUGH market conditions have a way of making people more litigious – a point both developers and architects should keep in mind when changing project teams.

Sep 10 2008 by Tony McDonough, Liverpool Daily Post

Copyright is automatic in plans – which are classed as drawings under the Copyright Designs and Patents Act. If the architect is an employee, the plans will be owned by the developer who employs them (unless stated otherwise in their employment contract).

If the architect is commissioned, then he or she owns the copyright (unless there is an assignment in their contract).

Infringement can occur on a number of occasions, including when 3-D works are created from 2-D images and vice versa.Š It can also occur by taking a photo of an architectural work.Š

A classic dispute would see architect A hired but later dropped due to expense – an important consideration in the current market climate. Architect B is then instructed to complete plans – incorporating elements of the original plans the developer had seen.ŠTherein lay the seeds of disputes we are increasingly being called in to handle.

If the court believes there are striking similarities between A’s plans and B’s finished building, it may rule that copyright infringement has taken place.

Architect A does not have to prove the building was made with the developer holding the plan in his or her hands – just that they may have seen A’s plans and, in turn, sub-consciously incorporated certain elements.Š

For architects, it is vital to protect their copyright in plans, from the start both legally and practically.ŠFrom a practical point of view, this can be done in a number of ways including storing plans in digital data room – digitally watermarked plans would create a digital “paper trail” to prove copying, and access to the plans could be better controlled.Š

As a compromise between the competing interests of the contracted architect and developer, it is also possible to use an escrow agreement.

The plans would be held by a third party unless certain trigger events occur, such as the architect’s insolvency or the full fees due to the architect in exchange for the plans are paid.