Has a customer ever asked you to use construction drawings from another job?
Or have you found out that another contractor was using your drawings? This can be a very frustrating situation – and also one that can carry liability for copyright infringement. Construction drawings, like any other work of authorship such as a book or video, is protected by copyright law. This means that the drawings cannot be copied, published, adapted, or edited by anyone that is not the owner or without the owner’s permission. The first question, then, is who owns a drawing?
The law provides, essentially, that the draftsman owns it, unless: (i) the draftsman is an employee and the drawing is made pursuant to employment (in which case the drawing belongs to the employer) or (ii) there is a written agreement in place with the draftsman (or employer) that assigns the copyright to a third party.
The next question is therefore what rights does a party have in drawings that it does not own? The example given above is a good illustration of this concept. A building owner hires a specifier or an architect to design a roof as part of a larger structure. Drawings are created by the architect, but the contract between the building owner and the architect does not address ownership of the drawings. The architect would therefore own the drawings and would grant (even if not in writing) a license to the building owner and the contractors the right to use and copy the drawings for the purpose of the construction project. However, the license ends at the completion of the job. The building owner has no right to then approach another contractor or another architect to modify the drawings or adapt them for use on a different project.
Another important concept is the distinction between owning the drawings and owning the copyright in the drawings. A party, such as the building owner, might own a paper copy set of the drawings for the building, but not the underlying copyright (and the rights to copy, publish and modify). This is the situation that results from a silent agreement regarding ownership of a commissioned work. It is therefore very important to ask questions about drawings that you (or your company) have not prepared. Who owns the drawings? Is there a clear contract which specifically assigns the ownership of the copyright (not just the physical or electronic drawings themselves) to the party that wants to use/modify/copy/publish the drawings? Were the drawings originally made for this project? These are important questions which become especially relevant for drawings that you commission and want to ensure that you have the right to own and use over for multiple projects.
This post was written by Barry Friedman.
