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One of the most important and often least understood terms of an architect’s contract governs ownership of the design: Is the owner the architect or the architect’s client? On the surface, it may seem obvious that the client 鈥� the person who pays for and will ultimately use the drawings to construct a building 鈥� would be the owner. But traditionally, it is the architect who retains the ownership rights in the design documents, and there are some good reasons for this rule.

As with any intellectual property right, generally the ownership is with the 鈥渁uthor鈥� of the work. Unless otherwise specified in the design contract, the architect will retain the ownership of the work 鈥� the building drawings and specifications. In 1990, Congress specifically recognized this ownership right by passing the Architectural Works Copyright Protection Act, which expressly extended copyright protection to architectural works.

But if the architect retains ownership of the drawings, how is the client able to use the drawings for construction? Usually, the architect grants the client a 鈥渓imited license鈥� to use the drawings in construction, but only for the specific structure for which the architect prepared the drawings. The granting of this license is covered in the standard language found in often-used American Institute of Architects (AIA) contract forms under 鈥淚nstruments of Service.鈥�

The granting of a 鈥渓imited license鈥� to use the design instead of an outright transfer of ownership has a number of purposes. At its most basic level, it is a matter of public safety. The design of a building (at least the kind requiring the services of a licensed architect) is usually unique, and the architect is legally bound to not only maintain control over the drawings through construction but also provide observation of the construction while it is under way. The drawings should neither be modified without the architect’s approval nor used at a different location or for a different project.

Another reason for this rule is economic and a matter of proprietary design concepts. Individual architects develop many components and details that are the tools of the trade that can be used to differentiate their 鈥減roduct鈥� from the product of other architects. If the ownership of those design components and details was transferred to the client and not retained, the architect could lose the right to incorporate those concepts in future projects.

Of course, in some situations, the balance of interests may tip in favor of transferring the ownership of the drawings to the client. One example would be a design-build project where the client of the architect is the general contractor and the architect may be working 鈥渋n-house鈥� as an employee. In such a situation, the general contractor retains the rights in the drawings.

Another example is the cookie-cutter design of many national retailers or suburban housing developers. In those cases, it is often the corporate owner or subdivision developer that retains the ownership of the design documents.

Finally, there is always that truly unique building design, specifically commissioned and paid for, where the interests of the client in protecting the structure from unauthorized imitation outweigh the interests of the architect.

Under any of these circumstances where the client is to acquire ownership of the documents, it should be spelled out clearly in the contract.

Bill Ohle is a shareholder with the law firm of Schwabe, Williamson & Wyatt. He 鈥巔ractices in the firm’s energy, construction and design groups. Contact him at 503-796-2414 or at 鈥�[email protected].鈥�