Do you remember the “Good Old Days…? Younger professionals may have no idea what I’m talking about. The design professional, for example the architect or engineer made his or her drawings on vellum, mostly with pencil and then came that awful stinky smelling process – because ammonia was used – the so called “Blue printing” when copies were made for plan check, construction or for the owner to keep. (At least the strong smell of ammonia kept the people in the office awake…) So far so good. After the plans were approved and went into construction, the architect or engineer tucked the drawings into a big flat filing cabinet. Offices were full of filing cabinets, because this was the only way to keep old drawings for a later addition, change order by the client, or for even a dreaded lawsuit to prove that the contractor did not follow the plans and that’s why the building collapsed. (Just kidding…) Nobody has ever asked the design professional to release the original drawings on vellums; everybody knew that traditionally it was the intellectual property of the design professional.

Fast forward into the digital age. Plans are emailed back and forth in cyber space between the design professionals, because they need each other’s drawings to use for their work, i.e. backgrounds for structural, mechanical or electrical engineering. No problem. Here comes the dilemma. Increasingly, agreements are requiring the design professionals to assign their ownership rights of their project design to the project owner, with other words requiring to give the owners the plan’s drawing files. Owners consider the design documents to be their property, because they are paying the design professional to produce the documents.

It is a business decision of the design professional whether to transfer the ownership (in this case the DWG files) or not. By transferring the DWG files to the owner, the design professional may lose lucrative future work, because the owner can hire another design professional, who will, or who at least can use these documents for his work, thus undercutting regular design fees. Case in point is that we receive at least one request a month by different cities’ Building and Safety Departments to give permission to release our old plans to new owners, who want to use our drawings for their newly bought house remodel. Building and Safeties of course do know that the old drawings are the design professionals intellectual properties and don’t want to get into any legal action. The reason is of course that with our existing old drawings the owners don’t have to pay their chosen architect or engineer good money to draw up new plans. Of course the design professionals can and should negotiate in good faith with the owners for the release of their drawings for an appropriate compensation. This compensation can be a one time “user fee” or the opportunity to do the proposed new work.

It is unfortunately a totally different ballgame with these “digital age” drawings. They can be easily obtained thru different channels, or being forced into releasing them, not to lose the job. As I mentioned before, the transfer of work product ownership may be a common occurrence in today’s construction industry but its implications can be significant. Legal counsel should be consulted to ensure your risk exposure is mitigated to the greatest extent possible, while protecting your valuable intellectual property rights.

I’m interested to know how other design professionals handle these recently arising legal issues. Please let me know so I can learn, help and educate others.

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