You do a ground-up design/build for a client.
Client came to you with all her own notes, sketches, details, specs, a whole lot of information, incredible detail as compared to the usual thing you deal with. With the ubiquitousness of Sketchup, maybe she even had the whole thing modeled up for you in eye-popping 3D.
You use Softplan or Chief Architect or one of the well-known packages, and do up the whole thing professionally, get it built for her just as she wanted. Job complete. Everybody is happy, you are paid, the job photos go in your portfolio at your website.
Maybe it was from the pics at the your website, or maybe it was from a casual weekend drive-by from an architect’s chief production gal or someone, maybe even the architect himself, but somehow, that house you built for this client, gets you in somebody’s radar.
It turns out that that project you did is pretty much a dead nuts copy of some bond trader’s weekend house built a few years back out on Block Island (or up near Tahoe, or down on Key Whatever, or anywhere), and it seems as if the attorney the architect has hired would like to speak with you.
The job was from three years back, and your files do not contain much if anything anymore, and certainly not any of the paperwork that that client furnished you.
In fact, the client got divorced last year and sold the house and has moved to Portugal.
What there is on record, and the attorney lets you know he has a copy, is the set of plans that were filed down at the building department office, that show your firm’s name in the title block, your boilerplate note about copyright, and your initials in the “approved by” part of the title of each page.
What do you do? This archy is trying to hammer you for copyright infringement, and the penalties are steep.
Replies
In general it's not copyright infringement if you just happen to design something similar -- a copyright is not a patent.
At issue is whether your client copied the design from them. But as I understand it, it would be up to them to prove this. Unfortunately, you can spend a lot of money on attorneys proving your innocence.
Probably the best thing to do (if you reasonably suspect your client copied) is to negotiate something -- eg, give them credit on your web site, maybe pay a modest licensing fee. If that doesn't work then you'll need to hire your own copyright attorney to fight the charges.
Don't let them worry you too much about the criminal penalties -- criminal prosecutions for copyright infringement are very rare.
This is a fairly esoteric legal subject. You really need to consult with a lawyer in the area. I'd say even before talking with the copyright claimant (see below)
As I understand it (and I may well be missing significant points) "intent" is not an issue - it does not matter that you had no intention of violating an existing copyright
Your principle (the client who supplied the drafts etc) may well be an/the infringer - the question becomes, to the extent that you copied her drawings - arguably, are you liable?*
I suggest talking to an attorney even before talking to the architect/purported copyright owner or his/her agents.
Because of the complexity of these issues and, especially, because this area of law uses "ordinary words" in ways which aren't ordinary, you might well say something you ought not.
For background: http://www.ladas.com/NII/CopyrightInfringement.html Law is not a DIY area, IMO
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* Did you have a design contract? Does that contract contain a hold harmless/indemnification clause? (Boiler plate in any att drafted contract.) If so, should a court hold you liable, you might have a claim against her on her indemnification (It is possible that even without a K, a court might be willing to impose an indemnification right on the oral contract.... Depends on (i) state law, (ii) the dealings between you and she, and (iii) getting a good att.
Again, you'll want a lawyer to sketch this stuff out and, if you have any such rights (or others, perhaps) decide at what point to bring this aspect of the situation to the attention to the copyright claimants.
"Ask not what the world needs. Ask what makes you come alive... then go do it. Because what the world needs is people who have come alive."
Howard Thurman
http://rjw-progressive.blogspot.com/
Because of the complexity of these issues and, especially, because this area of law uses "ordinary words" in ways which aren't ordinary, you might well say something you ought not.
I agree. Generally, if you infringe someone's copyright, you are liable. Think about all the cases that have made the news regarding songs that were similar - in some cases, not all that similar.
You really do need to talk with a local attoney who is an expert in this area. Your best hope would probably be to show that the house you build is different enough to be considered a new design, not a copy - but only an expert attorney familiar with the details of the case can really give you that advice.
"I agree. Generally, if you infringe someone's copyright, you are liable. Think about all the cases that have made the news regarding songs that were similar - in some cases, not all that similar."
But the thing is, most of those cases get thrown out (or settled for a pittance just to avoid the hassle). Even the recent one in which Coldplay's song is note for note exactly the same as Joe Satriani's is not a slam-dunk. There needs to be evidence that Chris Martin (of Coldplay) heard Satriani's version and re-created it.
My take on the o.p.'s question is that it would be extremely difficult for the plaintiff to prove the designer ever in fact saw the first building.
But then, I'm a glorified ditch-digger, so what do I know...
k
I'd agree. Unless there are a bunch of details the same then it would be hard to prove. And in theory the burden of proof is on the one claiming infringement. (In practice, of course, the burden of proof in on the side with the more poorly paid attorneys.)
The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness. -John Kenneth Galbraith
First -
The burden of proof is on them.
Second -
The legal advice you get here is worth only a little more than you pay for it.
Third -
You have made so many threads over the years about your designs, and about starting from plan book plans, and about 'practicing' your CAD skills by modeling existing places that have made you 'appear' to be barely skirting copyright laws that this question coming from you does not surprise me. I've never understood why a man of your skills does so much reproduction work.
This current situation may be just a coincidence in that your design just happens to look like a copy of somebody elses original work, in which case you will be vindicated, but it should also serve as a warning to let that puckersqeaze you feel between your cheeks keep you out of similar trouble in the future by relying more on your own creative skills.
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It ain't my prob, Pif. It is a well known archy that has the prob.
Furthermore, I have the original "license to build one" doc for every house I ever built, if the house was built to a design sold as a stock plan. Everything done for practice was just that. Practice.
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"A stripe is just as real as a dadgummed flower."
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Edited 4/21/2009 1:59 pm ET by Gene_Davis
Glad to hear that cleared up
Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!
Well, been there, sorta.
I had a client once who built a house from a pic in an ad for stock house plans. The owner of the plan company happened to be in the neighborhood and saw the house. The HO got a nasty letter and came to see me.
HO was indeed guilty of infringement, albeit semi-innocently. (Claimed not to understand he couldn't just build from the mag pic.) We were able to negotiate a reasonable, for all parties, settlement.
In your case, I am assuming the client got the design details she brought to the table from the original building (or plans of it) and more or less duped you into drawing it up as a reproduction of her ideas.
Your hurdle is going to be proving that she was the "idea thief" and not you. Is ex-hubby still around? He may be able to back you up. I'd get as much ammo as you can regarding the factual background and then go to the table willing to make a deal. If any significant cash payment is involved, you may wanna try real hard to bring your client to the table.
One thing to consider -- if you hire a lawyer, he can't talk to the other archi. But there's nothing stopping you from doing so. You may wanna try chatting with him, mano a mano, to see if he's willing to work with you without getting into the legal system too deeply. Maybe if you can convince him (professional references?, your charming personality?) of your innocence, he'll do the right thing.
Mike Hennessy
Pittsburgh, PA
Just saw that it isn't you. Phew! In that case, simply have a beer and be thankful. ;-)
Edited 4/21/2009 1:58 pm ET by MikeHennessy
Your hurdle is going to be proving that she was the "idea thief" and not you.
One thing to consider -- if you hire a lawyer, he can't talk to the other archi. But there's nothing stopping you from doing so. You may wanna try chatting with him, mano a mano, to see if he's willing to work with you without getting into the legal system too deeply. Maybe if you can convince him (professional references?, your charming personality?) of your innocence, he'll do the right thing.
Doesn't really matter who stole the idea - if he built it, he is most likely liable, whether or not he knew the idea was stolen.
Talking to the architect directly is a really, really bad idea. No good will come of it, it will annoy his attorney and likely make it difficult to find replacement counsel, and it may well compromise his case, regardless of the conversation, and result is a much larger expense for him.
Just don't do it - at least not without your attorney's advice and consent.
BTW, "The job was from three years back, and your files do not contain much if anything anymore, and certainly not any of the paperwork that that client furnished you." is not a very professional architect given that documentation is one the strongest points most of them have, IMO!
Even I keep all notes and sketches from clients in the file.
Welcome to the
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where ...
Excellence is its own reward!
I'd ignore the whole thing.............
especially since he isn't involved at all.
Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!
What do you do? You hire a lawyer to a) defend you in this case and b) help you update your contract you have your client's sign to avoid this in the future.
Hard to tell if you have a problem or not. Even if you sat down (or your client) sat down with a blank sheet of paper and came up with something already copyrighted there will be an issue.
Remember George Harrison and his copyright infringement judgement with parts of his "My Sweet Lord" sounding like "He's So Fine"? And here's a creative guy with a proven and very public track record in music creativity.
Copyright laws changed considerably back in the '90's. Gone are the days of getting a plan and just moving around a closet or two or just adding two feet, thereby getting a "different" plan.
As a architect who's come up with a creative solution or two over the years, I've been on the plaintiff side of this copyright infringement stuff three times and I'm 3-0. Probably could have been a plaintiff 20 times but most of the time I let it pass as it's a lot of trouble. The three times actually were client driven as they thought I was doing "drawer pulls" when they saw a dead ringer or a slightly modified version of their house. And yes, those three times involved the builder and the designer or architect.
My advice is to get an attorney.
Runnerguy
My house is remarkably similar to one published in FHB. Seen side by side you would definitely say one influenced the other. Mine was built two years before the FHB version, but I can be fairly sure its designer has never been down my quiet street on this remote coast. It's a complex issue.
"There is nothing new under the sun. All that is is all that has ever been."
-ecclesiastes.
k